Challenging a Will in Ontario
A will is a legal document that is meant to spell out the last wishes of the deceased concerning how they would like their estate to be distributed. But for a variety of reasons, a family member may wish to contest this document.
Each province has its own laws when it comes to challenging wills. If you are challenging a will in Ontario, there are several things that you should know first.
Who can challenge a will in Ontario?
To challenge a will in Ontario, you must be someone who has a financial interest in the estate. This includes spouses and financially dependent children. It also includes anyone to whom the deceased had a moral or legal obligation of support.
On what ground can you contest a will in Ontario?
The courts have very specific grounds that you may use to contest a will. They will not override a will simply because someone thinks the will is unfair or even because they were left out of the will altogether.
It is the position of the courts that the will should be upheld unless one of the following applies:
- The will was made under undue influence.
- The deceased was not capable of making a will.
- Noncompliance with formal requirements (e.g., Will is not signed, or not properly witnessed).
- Will does not include sufficient provision for spouse or dependents.
- Intentions of the deceased were unclear.
The onus on proving any of the above will lie with the person who is challenging the will. If the will goes unchallenged, the courts will assume that the deceased was competent and that all proper procedures were followed in the drafting of the will.
What steps are involved in challenging a will?
If you are considering challenging a will in Ontario, your first step should be to engage with a professional estate litigation lawyer who can determine whether challenging the will in court will be worthwhile.
If your lawyer determines that you have a winnable case, they will help you file a notice of objection. This document will detail the contestant’s interest in the estate and their reason for challenging the will.
If the will is being challenged due to the mental capacity of the deceased at the time of writing the will, the contestant’s lawyer will have to seek the disclosure of medical records. It is important to note however that just because you can prove that a person had a cognitive impairment (such as dementia) at the time of writing a will, that in itself is not enough to prove that a person lacked mental competency.
Costs for challenging a will
Usually, when a will is contested, the judge will order the loser of the dispute to pay some of the winner’s legal costs. That being said, however, it is rare that a judge would award the winner’s legal costs in full.
Additionally, the challenger may have to pay additional fees if the judge determines that the challenge was frivolous or a waste of the court’s time.
Finally, it is important to remember the emotional and mental toll that challenging a will can take on a family. It is already a difficult time emotionally and going through litigation can add even more stress. It is important therefore to work with an experienced estate litigation lawyer who can do the heavy lifting for you and ensure your case has merit before engaging in court proceedings.
Contact Levy Zavet today
If you are considering challenging a will in Ontario, our estate lawyers can review your case and help you with the process should you decide to proceed. Contact us today to arrange for a consultation.