ESTATE LITIGATION: Challenging the validity of a Will prior to probate

When someone seeks to overturn the last will and testament of a deceased, the process is known as challenging a will. Usually, the common grounds for challenging the validity of a will are:

1. The absence of testamentary capacity;
2. The lack of approval or knowledge of the contents of the will;
3. The indication of undue influence; or
4. The non-compliance with the requirements of due execution as stipulated in Part I of the Succession Law Reform Act (SLRA).

As well, there could be less frequent challenges based upon allegations, such as forgery or fraud. Those propounding the will have to prove that the testator had the required testamentary capacity.  They have to establish, on the balance of probabilities, that the deceased possessed the requisite level of testamentary capacity when the will was executed. If undue influence is the issue, those alleging undue influence have to establish that allegation. Then, there is the doctrine of “suspicious circumstances”, which includes such matters as the age and medical condition of the testator, the opportunity of others to exercise a degree of influence over the testator, and the significance of changes made in the will as opposed to earlier versions. Most importantly, if there are factual circumstances ordinarily making one suspicious about whether or not the will truly represents the testamentary intent of the testator at the time it was executed, there is a very heavy onus on the backers of the will to satisfy the court as to its validity. Generally, suspicious circumstances alone do not constitute a basis for challenging a will, but are, in fact, considered within the context of a challenge based on undue influence or lack of testamentary capacity.

Suspicious circumstances are defined as:

1. The circumstances surrounding the preparation of a will;
2. The circumstances putting a question mark on the capacity of the testator; or
3. The circumstances indicating that the testator’s free will was overcome by undue influence, coercion or fraud.

If there are suspicious circumstances, the normal presumption of capacity is removed along with the rebuttable presumption that the testator knew and approved of the contents of the will. If suspicious circumstances are demonstrably present, the court would be “vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased”. The suspicions are to be removed by proof of the testator’s knowledge and approval of the contents of the will. Furthermore, should the suspicious circumstances be related specifically to mental capacity, the presumption of testamentary capacity would no longer apply and the propounder of the will would have to reassume the legal burden of establishing capacity. Capacity, knowledge, and approval are to be proven in accordance with the civil standards on a balance of probabilities.

If suspicious circumstances exist, the presumptions of capacity, knowledge, and approval are no longer applicable; the legal burden of proving these elements reverts to the propounder of the will. The proceedings to challenge a will are started in the Superior Court of Justice in the jurisdiction in which the deceased last resided. Such proceedings are commenced in two ways. Where a Certificate of Appointment of Estate Trustee has not yet been obtained, a notice of objection is to be prepared and filed with the court forthwith. Where a Certificate of Appointment is already in hand, an order has to be applied for instead, again forthwith, requiring the person to whom the certificate was issued to return it to the court so as to determine the issues relating to the validity of the will.

Notice of Objection (Probate/Certificate of Appointment not yet obtained)

Under the Rules of Civil Procedure (Rules), r. 75.03 and Form 75.1, a notice of objection is a notice to the registrar of the court that nothing should be done by anybody in relation to the will of a deceased without informing the person who filed the objection (the objector). This notice sets out the interest that the objector has in the estate and the grounds upon which the will is being challenged. It should be filed with the estate registrar of the court in the jurisdiction in which an Application for a Certificate of Appointment of Estate Trustee for the estate of the deceased would be made pursuant to section 21 of the Estates Act. There is no need to serve a copy of the notice of objection on any party, but the local registrar of the court is required to forward a copy of the notice of objection to the Estate Registrar for Ontario (who is also the Registrar for the Estates List in the City of Toronto). A register of all objections filed in the province is kept by the Estate Registrar for Ontario. Unless confirmation has been received from the Estate Registrar for Ontario that no other application has been made with respect to that estate, and that no notice of objection has been entered in any court in Ontario, Estates Act, section 22, the local registrar of a court cannot issue a Certificate of Appointment.

This notice of objection remains effective for a period of three years after it is filed, and could be withdrawn by the person who filed it at any time before the motion for directions is heard, or could be removed by order of the court, Rules, r. 75.03(2).

Where an application for a Certificate of Appointment is subsequently filed, the estate registrar is to send notice that an objection has been filed to the applicant by regular mail to his or her address or the address of the estate’s solicitor, as shown in the application, Rules, r. 75.03(3), Form 75.2. The applicant is then required to serve the objector with a notice, advising the objector that an application has been made to probate the will and directing the objector to serve and file a notice of appearance within 20 days of service. As usual, a copy of the notice to objector is then filed with the court, with proof of service (Rules, r. 75.03(4), Form 75.3).

Should the objector fail to serve and file a notice of appearance within 20 days after being served with the notice, then the objection is removed by the registrar and the application for the Certificate of Appointment would proceed as if no notice of objection has been filed, Rules, r. 75.03(5), Form 75.4. If, however, a notice of appearance is served and filed, the applicant for the Certificate of Appointment of Estate Trustee is to then move for directions within 30 days after service of the notice of appearance, failing which, the objector can do so, Rules, r. 75.03(6).

Contact the Lawyers at Levy Zavet PC (Levy Zavet), whether your an Executor, Trustee, Beneficiary or Interested Party, we can help on all sides of such matters.