This Is the New Standard Required to Contest Ontario Wills

Are you thinking of contesting a will? Read this before you act.

This is the background to a new trend in will contests. Courts will protect testators’ private lives, their estates and limited court resources.

Fishing Expeditions

Courts now require minimal threshold evidence to question a will’s validity. Courts now decide what process to follow and what records to release.

Courts can prevent abusive fishing expeditions where will objectors scan records for reasons to challenge wills. These searches increase costs and intrude into private lives. Searches waste estates’ limited resources. The requirement for threshold evidence can help resolve will disputes sooner rather than later.

Disgruntled Relatives and Beneficiaries

Courts often see the same fact pattern. Disgruntled applicants or relatives are cut out of the will in favour of a preferred caretaker beneficiary. This caretaker is accused of exercising undue influence to get an unfair distribution. Malicious and unfounded allegations can lead to years of expensive litigation.

Suspicious circumstances have been the basis of fishing expeditions to sort through the deceased’s private information. The costs of these searches can wipe out an estate and leave nothing for beneficiaries. Suspicious circumstances are not legal grounds to contest wills.

What is Threshold Evidence?

Threshold evidence must, minimally, support will challengers’ claims at trial. If this evidence is refuted by the will propounders, what happens?

Courts can use their discretion to refuse or provide limited disclosure. Then a legal process can be created possibly short of trial to resolve the disputes.

When Did This Trend Start?

In 2014, the Supreme Court of Canada, in its Hryniak decision, called for judges and lawyers to make a cultural shift. Trials should be the last resort to resolve legal disputes. The judicial system must resolve legal disputes in:

  1. a fair,
  2. an efficient, and
  3. the least expensive, just process in every civil proceeding.

This shift is specified in the rules of the court. Rule 1.04(1) states:

Courts shall … give directions that are proportionate to the importance and complexity of the issues, and to the amount involved…

The Historical Trend Continues

In 2016, Ontario’s Court of Appeal in Neuberger v. York* set out the threshold framework. A goal of the civil justice system is to resolve legal disputes. Processes to prove wills are valid must be controlled by courts in their discretion.

There is no automatic right to require formal proof of a will. It is unfair to require estate trustees to go to trial because a disgruntled relative asks for formal proof of a will.

In 2017, Justice Myers in Seepa v. Seepa further explained threshold evidence in a case where about $250,000 was in dispute.

In Seepa, the court made it clear that at this preliminary stage, courts do not decide the will’s validity. They do not treat the matter as a summary judgment motion under rule 20.

Instead, courts must customize the process using a “scalpel and not a mallet”. Courts can use case management, mediation, and other efforts to minimize expense, delay and disruption in will disputes.

Ontario’s Court of Appeal Decides

In 2021 in Johnson v Johnson, the estate was worth $457,000. The applicant contested her mother’s will. She claimed she was inexplicably disinherited by her mother. Yet, mother had sued the applicant to demand an accounting and to recover her property before the will was prepared.

In 2022, Ontario’s Court of Appeal upheld the application judge’s decision to dismiss the daughter’s will challenge with costs. The applicant failed to meet the minimal evidentiary threshold and her appeal was dismissed as well.

The application judge made no error. The appeal court was not required to re-weigh the evidence. The mere evidence of mother’s dementia did not establish a lack of capacity to make a will. Applicant’s evidence, even if accepted, did not put the will’s validity in question.

Late in 2023 in Giann v. Giannopoulos, Justice Myers again applied the threshold principles to refuse disclosure and dismissed requests for directions based on bald assertions of wrongdoing. The will challenger failed to make full disclosure of inconsistent statements. The judge’s decision on who pays legal costs has not yet been released.

Do you have questions about contesting or defending a will? I can help you. Contact me today.

Estate law is all I do.

*Neuberger v. York, 2016 ONCA 303 (CanLII)