Challenging A Will

What if my parents cut me out of their Will?

First and foremost, there is a policy in favour of honouring the wishes of a testator (person making the Will). The principle of “testamentary freedom” safeguards a testator’s right to dispose of their property and choose the beneficiaries they so desire.^[1] Accordingly, an unequal division of property, even among children, is not considered suspect especially since it would mean that every Will in this regard, other than when there is an equal distribution, must be challenged.^[2]

That said, a Last Will and Testament may be challenged on the following grounds:

1. Absence of testamentary capacity or cognitive ability;
2. Absence of approval or knowledge of the terms of the Will;
3. Undue influence or coercion;
4. Forgery or fraud; and/or
5. Non-compliance with the legislative requirements for executing a Will.

Collectively, the above-noted grounds are referred to under the principle of “suspicious circumstances”.

When challenged, the propounder of the Will (person relying on the Will) must prove that the testator possessed capacity and knew and approved of its contents. In such cases, the drafting solicitor’s file will be relevant. Once satisfied the testator was of competent mind and had their Will read over to them, the circumstances point to a strong presumption that the Will has been duly, and properly executed.^[3]

Conversely, when a Will is challenged based on undue influence or fraud, it is the attacker of the Will who bears the burden of proving it. This is an important distinction because where an attacker pleads undue influence and their case appears weak from the outset, the propounder of the Will is free to move summarily (without the need for a trial) to have the matter dismissed.^[4] If successful, the attacker would be subject to costs, meaning the legal fees of the propounder in addition to their own.

Sometimes, formal proof of a Will is necessitated where, for instance, both witnesses cannot be located, both are dead, or the Will being put forward is not an original. The court may require the estate trustee to bring an Application for Directions respecting proof of the Will.^[5] This procedure is referred to a “proof in solemn form”. Additionally, where a Will has been lost or destroyed, it may be proved by way of application without an appearance where all parties consent^[6], otherwise it will be necessary to apply to the Court for directions respecting the procedure.

Will challenges are made to the Superior Court of Justice in the jurisdiction where the deceased last resided and can be initiated in two ways. If a Certificate of Appointment of Estate Trustee (sometimes referred to a Letters Probate) has not been issued, a Notice of Objection should be filed as soon as possible. In the event a Certificate has been issued, an order must be obtained by application requiring the person to whom the Certificate was issued to return it to court so the validity of the Will can be determined. 

At Hummingbird Lawyers LLP, we will help you determine the strength of your Will challenge and likelihood of success, in addition to guiding you through the court process.  

What if I still feel like I am being treated unfairly under the Will?

In the event you are a spouse, parent, child, or sibling of the deceased, you may have a claim to the estate if the deceased was financially supporting you, voluntarily or legally,  immediately before their death.^[7] This is known as a claim for dependant support which must be commenced by way of Notice of Application to the Superior Court of Justice within six months of issuance of a Certificate of Appointment of Estate Trustee.^[8]  

Once the application is made, distribution of the estate is automatically stayed.^[9] In determining the quantum and duration of support^[10], the court will consider the statutory criteria (e.g., age, needs, capacity to contribute to your own support) in addition to any moral obligation assigned to the deceased.^[11] With this type of claim, even assets passing outside of the estate by way of joint ownership (e.g., joint accounts), contract (e.g., life insurance policies), or beneficiary designation (e.g., RRSPs) can be clawed back thereby increasing the value for the purposes of calculating support.^[12] 

At Hummingbird, our lawyers can help you determine whether you qualify for dependant relief. Alissa N. Winicki successfully argued that a deceased demonstrated a settled intention to treat CL, who was neither his biological, adopted, or step- daughter, as a member of his unconventional family entitling her to support.^[13]  

What if I have concerns about the executor and estate trustee appointed in the Will? 

It is also possible to challenge the appointment of an estate trustee under a Will. 

A person, typically with a financial interest in the estate, may apply to the Superior Court of Justice to have an estate trustee removed and replaced.^[14] To do so, there must be evidence that the estate trustee is not fulfilling his or her duties or is failing to act in the best interest of the estate. 

An estate trustee is generally charged with the following duties: 

1. Determine the assets and liabilities in the estate;
2. Protect and preserve the assets;
3. Maintain trust accounts;
4. Ascertain, defend, settle, and/or pay debts; 
5. Prepare an estate accounting; 
6. Distribute assets to the beneficiaries; and
7. File income tax returns.

Consequently, in carrying out the foregoing, you will want to consider whether the estate trustee lacks transparency, conducts him or herself in a dilatory manner, or exhibits prejudice towards any of the beneficiaries.

Keep in mind that in the end an estate trustee must submit their accounts to the beneficiaries for approval. If approval cannot be obtained, the estate trustee will be forced to pass accounts through court, which is a formal audit commenced by Notice of Application.^[15] 

When court proceedings have already been commenced, such as in the case of a Will challenge, an order can be sought appointing an estate trustee during litigation (ETDL). An ETDL is a neutral third-party court officer who has the authority to administer an estate while litigation is pending but cannot make distributions from the residue.^[16] 

Sometimes, however, an estate trustee appointed under the Will may not be compelled to apply for the Certificate of Appointment of Estate Trustee or even to determine whether a Notice of Objection has been filed. In such circumstances, an order requiring the estate trustee to either apply for or refuse the appointment should be sought, which can be obtained without notice.^[17] 

At Hummingbird Lawyers LLP, our Wills and Estates lawyer can assist you to determine whether an estate trustee is in breach of their fiduciary duties and help you hold them to account.

For more information on challenging a Will, get in touch with Alissa Winicki.

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• Estate Litigation, What You Need to Know
• Probate, Dying in Ontario