Who can challenge a will? Ontario Court of Appeal confirms need for standing to proceed with a will challenge

Who can challenge a will? Ontario Court of Appeal confirms need for standing to proceed with a will challenge

Claire Kadwell
Posted October 26, 2021 Category: Individuals/Families, News & Updates

Anyone who appears to have a financial interest in an estate may contest the validity of a last will and testament pursuant to rule 75.01 of the Rules of Civil Procedure. If someone meets this requirement, they are said to have “standing” to challenge the will.

Most often it is a family member of the deceased who was named in a prior will or who would be entitled to inherit under an intestacy who is seeking to have the will declared invalid. Having a relationship with the deceased, or even being an immediate family member, is not enough. You must meet the requirement under rule 75.01 to challenge a will.

A recent case from the Ontario Court of Appeal confirms that you cannot proceed with a will challenge unless you have standing. In Moses v Moses, 2021 ONCA 662, a son sought to have his father’s will declared invalid on the grounds that he was unduly influenced.  The last will was signed only three months before the father’s death in 2019 (“2019 Will”) and did not provide anything for the son. However, the father’s previous will, executed in 1996 (“1996 Will”), also did not include the son. Therefore, even if the 2019 Will was invalid, the son would still not receive anything under the 1996 Will.

The Court of Appeal held that the son did not have a financial interest in his father’s estate as he would not inherit even if the 2019 Will was declared invalid, and therefore did not have standing to challenge the 2019 Will.  

The son also tried to argue that he had standing to challenge the 2019 Will under section 23 of the Estates Act because he had made a claim against the estate based on proprietary estoppel. Section 23 of the Estates Act reads as follows:

Citation of persons interested
23 Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.

The Court of Appeal also rejected this argument as the proprietary estoppel claim against the estate did not depend on whether or not the 2019 Will was valid.

Just because a person has a financial interest in an estate and standing to challenge the will, it does not mean they will be successful or even allowed to proceed past a preliminary stage of the process – certain minimum evidentiary thresholds must be met. Put another way, just because someone may challenge a will, it does not mean that the court will allow it – the court has discretion to decide whether the challenge should be allowed to proceed.

Court applications to challenge a will are legally and procedurally complex matters, and there are usually high emotional stakes for those involved. Our team has represented clients through all stages of the process and on both sides of the case – those defending the will as well as those seeking to have it set aside.

One of the lawyers from our Estate Litigation group would be pleased to meet with you to discuss your options.  Please do not hesitate to contact us.

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Claire Kadwell
Posted October 26, 2021 Category: Individuals/Families, News & Updates

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