Challenges to Testamentary Documents

Quite often we hear about someone’s Will being challenged.  The most common grounds being:

  • proper execution;
  • knowledge and approval of the contents of the Will;
  • fraud;
  • lack of testamentary capacity; and
  • undue influence and suspicious circumstances.

A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the court which sets out the reasons for why they believe the Will is not valid.

The party challenging the Will (the “Objector”) has the burden to show there are “suspicious circumstances” surrounding the execution of the Will.  If those suspicious circumstances are proven then the onus of proof “shifts” to the estate trustee as the propounder of the Will to prove the Will “in solemn form” and would be required to prove it was properly executed, the testator had capacity, actually signed the document and was not unduly influenced in the making or signing  of the Will. In Ontario, a properly executed Will requires that:

  • The Will must be in writing;
  • The Will must be signed at the end by the testator in front of two witnesses while all 3 people are in the room at the same time; and
  • The witnesses subscribe the will in the presence of the testator.

If the Will is duly executed (meets the 3 criteria listed above), it will generally be presumed that

the testator knew and approved of the contents and had the necessary testamentary capacity.

If the Objector can show suspicious circumstances surrounding the instructions or execution of the Will, the presumption of testamentary capacity and knowledge and approval is rebutted. The onus to prove the testator knew of and approved the contents of the Will and had testamentary capacity then shifts to the propounder (usually the estate trustee).

A Will challenge on the basis of undue influence results in the onus remaining with the Objector to prove undue influence.  This burden is not an easy one to prove especially if there are no issues of capacity.

Whether wanting to challenge a Will or defending a Will challenge, or wanting to have a Will drafted that should withstand a challenge, please contact us.

Related Posts

Law
SLF Web

Introduction to Estate and Substitute Decision Planning

2 Minute Read  There is a lot more to estate planning than simply creating a Will or Power of Attorney. In today’s article, we outline all of the possible components that can be included within an estate and substitute-decision plan. In combination, these various components can work together to ensure our wishes are fulfilled during

Read More »
Law
SLF Web

What is Elder Abuse?

2 Minute Read If you have an older adult in your life, such as a grandparent or an aging parent, it is important to raise self-awareness of elder abuse as it is often considered an underreported ‘hidden’ crime, many times occurring behind closed doors and at the hands of ‘trusted’ people. According to Elder Abuse

Read More »
General
Erin Lewis

What is Elder Law?

June 12, 2024 – 2 Minute Read In Ontario, there are almost 3 million older adults residing in the province, with less than 2 million adults becoming seniors in the next 10 years. As the population ages, it is increasingly important to raise awareness amongst seniors and their loved ones on how elder adults can

Read More »

Ontario’s Update Estate Laws

Last fall the Ontario government took steps to simplify the province’s estate laws. The changes took effect as of January 1, 2022, and are aimed to make the probate process more accessible. The good news:  the number of forms has been reduced from 58 to 23.  The forms are easier to understand and complete alongside

Read More »

I Just Bought a Condominium . . . Now What?

A condominium is a type of legal ownership where the property is divided between privately owned units and common elements. Each unit owner owns the unit as well as a proportion of common elements, which includes such things as hallways, lobbies and elevators and there are also “exclusive use common property elements,” such as balconies,

Read More »

Challenges to Testamentary Documents

Quite often we hear about someone’s Will being challenged.  The most common grounds being: proper execution; knowledge and approval of the contents of the Will; fraud; lack of testamentary capacity; and undue influence and suspicious circumstances. A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the

Read More »
Scroll to Top