Is there a legal basis to challenge a will?

A will challenge concerns the legal validity of a will. It is different from a claim that a valid will has failed to provide adequate support for a dependant.

Being disappointed by an inheritance is not enough to overturn a will. The first questions are whether you have a sufficient financial interest to bring the proceeding, whether there is evidence supporting a recognized ground of challenge, and what you could receive if the challenge succeeds.

Issues that may require investigation

Testamentary capacity. Did the will-maker have the capacity required to make the will at the relevant time? Medical history can be important, but a diagnosis alone does not resolve the legal question.

Knowledge and approval. Did the will-maker understand and approve the contents of the document? The preparation process, instructions and surrounding circumstances may matter.

Undue influence. Was the will the product of coercion that overrode the will-maker’s free decision? Influence, assistance or a close relationship does not automatically establish undue influence.

Execution and authenticity. Questions can arise about signatures, witnessing, alterations or whether the document is authentic. A formal defect requires careful assessment: Ontario law permits court validation of certain documents in qualifying circumstances.

Suspicious circumstances may justify closer scrutiny, but they are not a substitute for proving the issues required by law.

The evidence and the practical outcome

Relevant evidence may include earlier wills, the drafting lawyer’s records, medical records, witness accounts and communications around the time of the will. Access to another person’s records may require consent, court directions or another lawful process.

It is also important to examine what happens if the disputed will is set aside. An earlier will or the rules applying where there is no valid will may produce a different result from the one a challenger expects.

Procedure, settlement and costs

The appropriate procedure depends in part on whether a Certificate of Appointment of Estate Trustee has already been issued. Advice may be needed about an objection to probate, court directions, document production or protection of estate assets. An objection should not be treated as a substitute for advice about limitation periods and the steps needed to pursue the claim.

Settlement can be explored as the evidence develops. Before proceeding, consider the estate’s value, the potential recovery and the risk of having to pay some of another party’s legal costs.

Discuss your concerns

Thomas J. MacLennan can help you assess your position and the steps appropriate to a will dispute. Call 416-591-1354 to arrange a consultation by telephone, Zoom or in person. Seek advice promptly: deadlines depend on the nature of the claim and its circumstances.

Related estate and family law advice

Estate litigation overview · Will challenges · Spousal equalization after death · Dependant support claims