New Trends to Know if You’re Challenging Ontario Wills

Here are factors courts consider before giving directions to contest a will. Courts have duties to the deceased will maker who is not before the court.

1. Personal Disclosure
The deceased person cannot argue against the release of their private medical, financial, or legal files (disclosure orders). Usually, legal files are privileged and not released if the person was still alive. In will contests, such disclosure orders were common. Courts routinely allowed disclosure orders.

2. Control of Disclosure
Courts can control what documentary information is released. This material can cause fishing expeditions. Lawyers go through disclosure looking for grounds to contest wills. This can tie up the estate in years of litigation. Judges can make disclosure decisions without a formal hearing or trial. They no longer automatically agree to routine disclosure orders without justification. Disclosure must be proportionate to the amounts involved. Arguing over $250,000 should not require will challengers to review 10 years of personal records.

3. Court Discretion
Courts have discretion. A challenger’s suspicion is not enough to challenge a will for years in court. The courts can determine, based on the existing evidence before them, what processes to follow to resolve will disputes. Not every legal dispute requires a trial to resolve matters. Saving limited court resources is encouraged.

In Summary

In will cases, not everyone has the right to a trial. Will contests require the court to decide if there are sufficient grounds to question if wills are valid.

If you contest a will, threshold evidence is required to prove your case. It needs to put testamentary capacity or undue influence in question. The court will then decide what tools to give you to resolve will disputes.

Some minimal evidentiary threshold is required to contest wills and rebut presumptions of will’s validity. Courts will no longer allow broad fishing expeditions for will challenges.

Will challengers must provide some evidence, other than suspicion, of incapacity or undue influence. This minimal evidence is needed before exposing the estate to needless expense and litigation.

Do you need to defend or contest a will today? I can help. Contact me today.

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