Losing a parent or a loved one is painful. Discovering that their will does not reflect what you believed they intended — or what you were led to expect — can turn grief into conflict. Not every will that surprises a family member is a defective will. But some are. Knowing the difference, and understanding the legal process for challenging a will in Ontario, is essential before taking any action.
Not Every Disappointment Is a Legal Claim
The starting point for any will challenge conversation is this: a testator in Ontario has the right to distribute their estate however they wish. They can disinherit adult children (with limited exceptions for dependants). They can leave more to one sibling than another. They can favour a charity over a family member. Being left less than you expected — or nothing at all — does not, by itself, create a legal basis to challenge the will.
To successfully challenge a will, you need a recognized legal ground. There are several, but none of them are ‘I deserved more’ or ’that is not what they told me.’
Grounds for Challenging a Will in Ontario
Lack of Testamentary Capacity
A testator must have ’testamentary capacity’ at the time they sign their will. In Ontario, this means the testator must understand the nature and effect of a will, the extent of their property, the claims of those who might expect to benefit from the estate, and how these elements combine in the document they are signing.
Capacity is assessed at the specific moment the will was executed — not at some other point in the testator’s life. A person can have periods of capacity interspersed with periods of incapacity. A will executed during a period of capacity is valid, even if the testator suffered from dementia or other cognitive decline at other times.
Challenging a will on capacity grounds requires medical evidence, often expert testimony from physicians or geriatric psychiatrists who can assess the testator’s cognitive state at the relevant time. Medical records from the period around execution are critical evidence.
Undue Influence
Undue influence occurs when a person in a position of power over the testator uses that power to override the testator’s independent will and substitute their own. The key distinction is between influence (permissible) and undue influence (not permissible). Encouraging someone to remember you in their will is influence. Threatening, isolating, or manipulating a vulnerable person until they sign a will that does not reflect their own wishes is undue influence.
Proving undue influence is difficult. Courts look at the testator’s vulnerability, the influencer’s access and opportunity, suspicious circumstances in the will’s preparation, and whether the testator had any independent advice. The suspicious circumstances doctrine — recognized by the Supreme Court of Canada — can shift the burden of proof to the person propounding the will in certain circumstances.
Fraud
A will procured by fraud — for example, where the testator was deceived about the contents of the document they were signing — is invalid. Fraud is relatively rare as a standalone ground but can be combined with allegations of undue influence in complex family disputes.
Improper Execution
Ontario’s Succession Law Reform Act requires that a will be signed by the testator in the presence of two witnesses, both of whom attest the signature in the testator’s presence. If these formal requirements were not met, the will may be invalid — though courts now have some discretion to validate documents that do not strictly comply with formal requirements if satisfied that the document represents the testator’s deliberate and fixed intention.
Dependant Support Claims: A Different Kind of Challenge
Adult children and other dependants who feel inadequately provided for under a will have a remedy that is not strictly a ‘will challenge’: an application for dependant support under the Succession Law Reform Act. This does not ask the court to void the will — it asks the court to vary the distribution to provide adequate support for a dependant who was not sufficiently provided for.
This remedy is available to spouses (married and common-law), children, grandchildren, parents, siblings, and other dependants. The court considers the relationship, the testator’s obligations, the size of the estate, and other relevant factors.
The Timeline: When You Must Act
There is no single fixed deadline for all will challenges in Ontario, but time is not on your side. The general limitation period under the Limitations Act is two years from the date you knew or ought to have known about the potential claim. For dependant support applications, specific deadlines apply that may be shorter.
More practically, the longer you wait, the more likely the estate is to be distributed — and recovering assets from beneficiaries who have already received them is significantly more difficult than freezing the estate before distribution. The moment you suspect a will may be challengeable, seek legal advice.
What the Process Looks Like
A will challenge in Ontario proceeds as an application in the Superior Court of Justice. The process typically involves:
- Filing an application (or a Notice of Objection if probate has been applied for but not yet granted)
- Discovery of documents — obtaining medical records, drafting lawyer’s files, correspondence
- Examinations for discovery — sworn questioning of witnesses
- Expert evidence — medical or other experts
- Trial or negotiated settlement
Most will challenges settle before trial. But settlement negotiation requires leverage — and leverage requires having a genuine legal claim with evidentiary support.
Final Thoughts
Challenging a will is not a step to take impulsively or emotionally. It is a legal proceeding with real costs, real timelines, and uncertain outcomes. The right first step is always a consultation with an experienced estates and litigation lawyer who can assess the merits of your potential claim — honestly and without judgment. If the grounds are there, you deserve to know it. If they are not, you deserve to know that too.
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Goldstone Law Professional Corporation serves clients across Mississauga, Brampton, Oakville, and the greater GTA in real estate, corporate, estate, and mortgage law. Whether you are buying your first home, structuring a business deal, or planning your estate, our team provides the clear, practical legal guidance you need.
Visit goldstonelawpc.com or call us at 905-595-9917. We are located at 201-186 Robert Speck Parkway, Mississauga, ON L4Z 3G1.
Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified Ontario lawyer.
This article is provided for general information only and does not constitute legal advice. For advice about your specific situation, please contact Goldstone Law PC directly.