July 14, 2020

The death of a loved one is a painful experience. The loss can become all the more difficult to accept for a potential beneficiary who had an expectation of receiving an inheritance under the deceased’s Will, but instead receives less than expected or nothing at all. The disappointed beneficiary may feel compelled to challenge the Will as invalid. However, there are a number of factors a would-be Will challenger should consider before commencing a Will challenge:

1. Standing: In order to challenge a Will, the challenger must have “standing” to do so. The challenger must be a married spouse or dependant of the deceased, or otherwise have a financial interest in the Estate (ie. the challenger is a beneficiary under the challenged Will, under a prior Will, or on intestacy, if there was no prior Will).

2. Grounds: A Will cannot be challenged simply because it is unfair, unexpected, or favours some beneficiaries over others. There must be a basis in law to challenge the Will. Grounds to challenge a Will may include any or all of the following:

a. the deceased lacked testamentary capacity at the time the Will was signed;
b. the deceased was unduly influenced in signing the Will;
c. suspicious circumstances surrounded the making of the Will;
d. the deceased did not have knowledge of, or approve the contents of, the Will;
e. the Will was improperly signed and/or witnessed; and/or
f. fraud.

3. Benefit to Setting Aside the Will: The challenger must consider whether they stand to benefit if the Will is set aside. Would the challenger receive a greater inheritance under a previous Will or, if there is no prior Will, on intestacy?

4. Other Remedies Available: If the Will challenger is a married spouse or a dependant of the deceased, the challenger should consider other remedies available that do not require invalidating the Will, such as choosing to receive an equalization payment from the Estate of the net family property under the Family Law Act (in the case of a married spouse) or bringing a dependant’s support claim under the Succession Law Reform Act (in the case of a dependent).

5. Onus of Proof: The challenger has the onus of proving the challenged Will is invalid, and the law presumes the deceased was competent when the Will was signed.

6. Burden of Proof: The challenger must put forth sufficient evidence to meet a minimum evidentiary threshold in order for the Will challenge to proceed. Such evidence may only become available with production of the deceased’s medical records, and the file of the lawyer who drafted the Will.

7. Thick Skin: The challenger’s affidavit in support of the Will challenge will almost certainly contain evidence that impugns the conduct of the person or persons who benefit under the challenged Will. The challenger must be prepared to receive a response in kind from those who support the challenged Will.

8. Loser Pays: In the past, courts were willing to permit the Estate to bear the legal costs of a Will challenge. Nowadays, the costs in Will challenges follow the “loser pays” principle: if the Will challenge fails, the challenger pays a portion of the winner’s costs, not the Estate.

9. Limitation Period: A will challenge cannot be brought indefinitely. The general rule is that the Will challenge must be brought within two years of the deceased’s death, subject to certain exceptions, such as discoverability, and the nature of the relief being sought on the Will challenge.

10. Settlement: Mediation is mandatory in Estates matters in Toronto and must occur before the case proceeds to a formal hearing. Most cases settle at mediation or before trial. The Will challenger should keep in mind that settlement may be the likely outcome of their Will challenge before they have their “day in court”.

The above considerations are by no means exhaustive but provide general insight into what to expect before the commencement of a Will challenge.