Will Challenges

If you believe that a Last Will and Testament (including any codicils) does not truly reflect the wishes of the testator, you can challenge the Will by filing a Notice of Objection to the issuance of a Certificate of Appointment of Estate Trustee.

Typical grounds for challenging a Will are the testator did not have capacity to make a Will (lack of testamentary capacity); the Will does not comply with statutory requirements (lack of due execution); the testator did not understand or approve of the Will’s contents; and undue influence.

Fraud or forgery are also grounds for challenging a Will, although they are not advanced as frequently.

If a Certificate of Appointment of Estate Trustee (also called “probate”) has not yet been issued by the court, you  begin a Will challenge by filing a document called a “Notice of Objection” with the court.  This document will set out why you are challenging the Will.  If a Certificate of Appointment of Estate Trustee has already been issued by the court, you begin a Will challenge by asking the court to order a return of the Certificate of Appointment.

It is also prudent to write to the Estate Trustee and/or the solicitor for the Estate setting out your objection.

The next major step in the litigation process is either a Motion or Application for Directions.  The court may then order how the litigation process will proceed.  This order can be quite broad and may include such issues as who are the parties, what are the issues to be decided at trial and/or at mediation, when mediation is to occur and when examinations of the parties is to occur.  The court might also order the release of medical information concerning the testator or other relevant information from third parties.

The cost depends on many factors, including how complicated the Will challenge is, the number of parties involved, and whether the parties are amenable to settlement.

Courts have discretion over which party pays the costs of litigation, and how much the party pays.

Traditionally, a person challenging a Will could expect his or her costs to be paid by the Estate.  The rationale for this appears to be that the litigation was required because of the testator’s actions in leaving his or her final affairs in disarray  Another rationale may be that of public policy: as a society, we want to ensure that estates are distributed according to valid Wills.

However, in recent years there has been a trend towards requiring an unsuccessful party to bear his or her own legal costs and/or to pay a portion of the legal costs of the successful party.  The Court will carefully consider whether any challenge was reasonable in the particular circumstances of the case.

Depending on when the Will challenge is settled, it can take anywhere from 6 months to 2 years for a Will challenge to be determined by the court.  If the matter settles and Will challenges often do, it could take as little as 6 months.

In certain jurisdictions, including Toronto, mediation is mandatory.  In other jurisdictions, it is voluntary.  It is up to the parties to decide when to mediate, who the mediator should be, and the issues to be decided on the mediation.