Contesting a will in Ontario: What are the changes to watch out for?

Contesting a will in Ontario is markedly different from how to challenge wills in other jurisdictions. This is because Ontario follows a minimal threshold rule which sets a requirement for when a will can be challenged. 

Before discussing the minimal threshold concept though, it’s important to first talk about wills themselves and how Ontario approaches estate law. Provincial laws typically govern the validity of wills and how assets are distributed. For Ontario, the primary law is the Succession Law Reform Act. 

What makes a will invalid in Ontario? 

Several grounds can be raised when contesting a will in Ontario. It can be on the basis that the testator was unduly influenced, improper execution, forgery, or testator did not have the capacity to make the will. 

“To have the capacity to make a will, the person in question must understand the nature of the act of making a will, the extent of their property, [and] who might expect to benefit from their estate,” explains Kristine Anderson, Founder of Fern Law practicing specifically in Ontario. 

Undue influence comes into play when a party is pressured (coerced) to make the will, and it does not reflect their true wishes, she adds. If any of these circumstances are present and proven in court, the will may be declared invalid.  

Procedural requisites of contesting a will 

Challenging the validity of a will is possible. However, it's not something that anyone can do at any time. To even file a contest, a person must meet and prove certain requirements. Here's an overview of the what’s and how’s of contesting a will. 

Who can legally contest a will in Ontario? 

Legal standing is required before a person can contest a will. This is a concept that requires the challenger to be someone who can benefit or be injured if the will passes the probate process. Individuals who could acquire legal standing include: 

• the spouse 
• the children 
• creditors of the testator 
• beneficiaries of the most recent will 
• beneficiaries of a previous will 
• those who stand to benefit if there is no will at all, in which case the laws of intestacy will govern 

Mere acquaintance or half-hearted promises are rarely enough to acquire legal standing. Note though that under the Succession Law Reform Act (SLRA), certain individuals may also contest the will based on a wills variation claim. These are: 

• common-law spouses who lived with the deceased for three years or more 
• the parent of the child of the deceased 
• former spouses 
• adopted or biological children 
• dependants or those financially supported by the deceased under Section 58 of the Succession Law Reform Act 

Note though that legal standing is only concerned whether a person can file an objection contesting a will in Ontario. Whether that contest will be allowed is another matter. 

What are grounds to contest a will 

Lack of capacity to make a will is just one of the grounds for contesting a will in Ontario. Other reasons to launch a challenge include: 

• undue influence 
• fraud or forgery 
• the will is vague or does not fully state the will-maker's intentions 
• failure to comply with all the formal requisites 

Here’s what you should know about formal requisites of wills: 

Check out our legal FAQ page for more answers to legal questions about contesting a will in Ontario and other jurisdictions. 

Where to file a contest of the will 

Probate of the last will of the testator is filed within the territory where the deceased resided. Hence, a resident of Ontario will have their will probated in Ontario. For any contest of that will, the action must be filed within the same jurisdiction, often in the same court. This halts the probate process until the question of validity is resolved. 

What happens if a probate is filed in a wrong jurisdiction? The court may dismiss the probate itself, but the executor can still file a new action, this time in the proper jurisdiction. Obviously, this means that contesting a will must also be filed within the right court, otherwise it is dismissed, and the probate continues. 

When to contest a will  

The best time to contest a will is as soon as possible. Ideally, contesting a will in Ontario is done before the grant of probate. Once a will is declared valid, challenging its contents becomes more difficult. Note that in Ontario, there are precise timelines to consider especially if the will is contested based on inadequate support or through a wills variation. 

Here’s a helpful table about prescriptions based on the grounds: 

Often, there are multiple grounds presented when contesting a will. 

Biggest challenges when contesting will in Ontario 

Contesting a will in Ontario can be more difficult compared to other territories. This is because Ontario has set new guidelines or made changes in how wills are probated, the scope of beneficiaries, and even the extent of distribution. Here are just some of the biggest issues that people encounter when trying to contest a will: 

Minimal threshold 

The courts in Ontario have imposed a minimal threshold that must be met before a will challenge can proceed. Kristine Anderson of Fern Law explains that the challenger must present some evidence which, if accepted and not answered by the propounder of the will, would cast doubt on the will. 

“If this threshold is met, the will challenge will not be allowed to proceed," she adds. "The threshold was developed to prevent fishing expeditions by disappointed beneficiaries and upholds Ontario's strong history or preserving testamentary freedom.” 

Therefore, aside from the requisites previously discussed, contesting a will in Ontario must meet the threshold set by courts. 

Complexity of the will 

Of course, the will itself can be complex, making it difficult to fully understand the desires of the will-maker. The complexity usually happens if the estate is large, there are joint owners, or if there are numerous beneficiaries. Multiple contests may also be filed with the same estate, creating a contrariety of legal rights that need to be untangled. 

On the upside though, Courts are now empowered to validate documents even though they do not strictly meet formal requisites. This means that failure to meet formal requisites as a ground for contesting a will can now be cured.  

In these cases, enlisting lawyers from the best estate law firms in Ontario is usually the best course of action. Having lawyers who have a firm grasp of the law affords better representation and could present the case more convincingly.  

Proving undue influence and lack of mental capacity 

Undue influence and lack of mental capacity are states of mind that would need to be extensively proven by the person challenging the will. A critical factor here is that these states of mind must be proven at the time the will was signed by the testator.  

Classic examples would be undue influence exerted by a doctor or nurse who was suddenly added to the beneficiaries of the testator. For lack of mental capacity, typical examples include dementia or Alzheimer’s. 

Typical signs associated with undue influence include: 

• isolation of the testator, creating dependence on the person who exerts influence 

• changes in the physical or psychological characteristics of the testator such as illness, signs of neglect, or impairments 

• controlling behaviour especially during the drafting of the will with the lawyer 

• the testator invests a lot of trust and confidence in a person whom they named a beneficiary 

Here’s a great video explaining more about undue influence: 

Lack of mental capacity, meanwhile, often means that the testator doesn't have: 

• firm grasp of the extent of the property 

• full understanding of the amount of property being left to a beneficiary 

• understanding of the nature of the will and the circumstances of its operation 

The sheer breadth of circumstances that could cover these situations means that estate lawyers challenging a will must be comprehensive in their arguments. Evidence shown could also be a variety of documents like the testator’s medical records, medicine taken, any injury sustained, or even illustrations of reliance of the testator on the beneficiary. 

Wills variation challenges and updates 

The laws on wills and estate are constantly evolving with the SLRA. Previously, a wills variation challenge is primarily concerned with inadequate support left to spouses, children, and dependants. Now though, there are more nuances to the law that applies prospectively. 

Here’s bird’s eye view of what’s changing now: 

• Existing wills are not revoked by marriage starting in 2025. This means that if a person marries, their previous will remain effective until they create a new one. This is critical in cases where an ex-wife is the beneficiary of the subsisting will 

•  For purposes of succession, couples separated for more than three years are viewed as already divorced. Hence, if a spouse dies after separation of three years, the surviving spouse cannot inherit from the estate 

Since this is new legislation, the manner of their application hasn’t been properly tested. This is where the input of estate lawyers becomes critical in order to best match the facts with the law.  

How much does it cost to contest a will in Ontario? 

The biggest challenge when contesting a will in Ontario is the cost. This is also the biggest reason why most people choose not to challenge a will despite having valid grounds. Often, the cost can be anywhere from several thousands to tens of thousands of dollars. 

If the contest is meritorious in that there is sufficient ground to contest the will, the court usually requires payment of damages. Hence, the estate or the persons who caused the grounds may be required to reimburse the challenger. It’s important to ask an Ontario estate lawyer directly about anticipated costs and timeline. 

Mediation and alternative dispute resolution 

Certain jurisdictions require that parties undergo mediation before proceeding to trial. The mediation process gives parties an opportunity to enter compromises in a less formal setting. The advantage is avoiding lengthy and expensive trial. 

In Ontario, the mediation process is mandatory in certain cities. Specifically, it must be done for civil cases in Toronto, Windsor, and Ottawa through the Ontario Mandatory Mediation Program (OMMP). 

Getting help for contesting a will in Ontario 

Compared to other jurisdictions, challenging wills in Ontario is more difficult, especially with the minimum threshold requirement. Simply getting that objection through the door already requires the input of excellent legal minds who can overcome the initial burden of proof.  

If you want a more targeted approach to questions about will contests, our Lexpert-ranked best estate and personal tax planning lawyers can offer personalized legal insights about your odds!