Your Comprehensive Guide to Will Challenges (Part 1 of 6): Preparing the Application

This summer, the OBA Trusts and Estates Section held a helpful and interesting CPD series about Will challenges: Your Comprehensive Guide to Will Challenges. This series presents practical information for lawyers on Will challenges, and includes six sessions. In the first session, “Preparing the Application”, the panel explained the grounds for challenging a Will, some key questions to ask in an initial client interview, the process of objecting to the issuance of a certificate of appointment of estate trustee, and some of the statutory provisions of which lawyers who encounter Will challenges ought to be aware.

Grounds to Challenge a Will 

The speakers discussed the bases on which a Will can be challenged. For a Will to be valid, it must comply with the formalities of due execution. Historically, Ontario has engaged a strict interpretation model in which judges do not have the discretion to declare a Will valid where there are any technical irregularities. In April 2021, however, Bill 245 received Royal Assent.[1] This bill will enable judges of the Superior Court of Justice to declare that a Will is valid as if it had been properly executed, even if it is not in strict compliance with the statutory framework.[2]

As discussed by the panel, an applicant can raise several grounds in challenging a Will. First, she can allege that the testator did not have capacity when giving instructions or signing the Will.[3] This determination is a legal test, not a medical one, and requires the highest degree of capacity known to the law. A challenger needs to consider whether the lack of capacity was ongoing or merely episodic. Second, the challenger can allege that the testator did not have knowledge and approval of the contents of the Will. Third, the challenger can allege that the testator was unduly influenced. Speakers cautioned that someone wishing to challenge a will on this ground should bear in mind that undue influence is very difficult to establish because it is in essence an allegation of fraud and coercion. Finally, a challenger can raise “suspicious circumstances,” which is not a ground in itself, but rather, requires the propounder of the Will to dispel any of the concerns raised.[4]