Will Challenge, Will Defence, and the 5 Elements of a Valid Will

Challenging a Will and the 5 Elements of a Valid Will in Ontario

Whether a will challenge is the right course of action for a client depends on several case-specific factors.  We recommend that Ontarians read this page in its entirety before challenging a will and before paying a retainer to a lawyer.  

Wills require all of the following elements to be valid:

1. Due Execution: The will must have been signed by the deceased in front of at least two witnesses who also signed the will.  If a witness is also a beneficiary, they may not be entitled to receive any assets under the will.  If a will is not properly signed or witnessed, this can be the easiest way to win a will challenge.  For deaths occurring after January 1, 2022, Ontario courts have the power to correct improperly signed or improperly witnessed wills in limited circumstances.  Given how recent this change to the law is, there is little guidance available to lawyers with respect to how this power will be exercised.  Wills completely written in the handwriting of the deceased are treated differently.  If someone is attempting to probate a will that was not drafted by a lawyer, you should consult with a lawyer about whether it should be challenged.   
2. Testamentary Capacity: The deceased must have been of sound mind, memory, and understanding when he or she signed the will.  Medical conditions such as Alzheimer’s Disease, acquired brain damage or brain injury, and dementia will make it more difficult to prove that the deceased had sufficient capacity at the time a will was signed.  If the deceased lived in palliative care or a nursing home at the time a will was drafted, this may provide helpful evidence to demonstrate a lack of capacity.  This is the most common ground for a will challenge.
3. Knowledge and Approval: The deceased must have had knowledge of and approved the contents of the will. 
4. No Undue Influence: Undue influence means more than persuasion, but it is not necessary to show physical violence, confinement, or threat.  It is, unfortunately, a vague concept in the law.  Will challenges that only rely on undue influence are difficult to win.  
5. No Estate Fraud: If a court finds that a signature was forged on a will, the will is invalid.  A court will look at the surrounding circumstances to determine if a signature was forged.  A court will not accept a false will.

It is common to challenge a will on several grounds at once, with capacity, knowledge and approval, and undue influence being a popular combination given the overlap between the three.  An individual with a lack of capacity is less likely to have knowledge of the contents of a will and is more likely to be unduly influenced.    

Your chances of winning a will challenge

The odds of winning a will challenge are determined by the merits of each individual case.  A challenge to a will signed by a long-time nursing home resident with an advanced, documented case of dementia and memory deficits may be strong.  A challenge to a will signed by an individual who was employed and who cared for themselves independently may not enjoy the same chance of success.  

Each client considering a will challenge needs an opinion from an experienced estate lawyer to determine whether they should proceed.  Katzman Estate Law offers free initial calls and can be reached at 844-602-4242 to see if a matter is worth pursuing without any cost or risk to you.  We tell at least half of the people who call us about will challenges that their case is likely, not worth pursuing at the end of the free consultation.  We put our client’s interests first and give honest opinions.  We know how to weigh the strengths and weaknesses of each potential case.           

The process for challenging a will

A will challenge is not as simple as suing someone.  Each will challenge should typically begin with a document called a Notice of Objection.  This document informs the court and anyone seeking to become appointed as executor and trustee of a deceased individual that the objector opposes the validity of the will.  An objector must then provide sworn, written evidence explaining why they believe that a will may be invalid.  The parties go to court for an Application for Directions, which will set the procedure for how the case will be decided.  The court will decide what documents each party will be able to access.  The court will rule on whether the parties:

1. can access medical documents of the deceased,
2. can access financial documents of the deceased,
3. can access the will-drafting lawyer’s file,
4. can question the will-drafting lawyer at a recorded meeting out of court, which is called an examination,
5. can conduct examinations on each other,
6. need a temporary trustee to manage the estate during the will challenge.

Access to information and documentation is fuel for an objector’s case as these documents will be used to prove a lack of capacity or the presence of undue influence.  Although rare in well-handled cases, a will challenge can be defeated at the Application for Directions, also known as a "threshold hearing", if an objector cannot convince the court that their allegations have merit.  

The major steps for a will challenge case at Katzman Estate Law are described below:

1. Initial call with a lawyer:  A potential client will call our law firm to inquire about whether a will challenge is appropriate for them.  This call to Katzman Estate Law is free and confidential.  The client will be put in touch with a Katzman Estate Law lawyer.  That lawyer will go over what they plan to do for you if you decide to sign up with us.  
2. Meeting with the lawyer:   The client will meet in person or remotely with a lawyer to sign a retainer and formalize our representation.  We will go over whatever documents or facts are available.  
3. Notice of Objection:  This document is filed with the court to prevent an executor or trustee from beginning the probate process. It is one page long and can be submitted quickly.   
4. Materials are drafted:   We will draft and submit two documents to the court. The Notice of Application identifies what we want from the court and the Motion Record contains our evidence, including an affidavit from our client.  
5. Initial hearing:  The Application for Directions is heard and an order from the court is provided.  This empowers us to obtain documents and proceed with the case.  
6. Documents come back:  Medical, financial, and legal documents are obtained and exchanged. 
7. Examinations:  The challenger, defender, and will-drafting lawyer are asked questions by lawyers from each side in front of a court reporter.  Transcripts are generated.  
8. Final hearing:  The matter is decided by a judge. 

Cases may settle at any time and they often do before a full hearing.  

How long does a will challenge take?

A will challenge may resolve at any time, which means that a resolution may be worked out within a few months.  Typically, will challenges take between one and three years to resolve, if at least one of the lawyers is pushing the matter towards a conclusion.  If the parties involved are comfortable with delay, a will challenge can languish for many more years than that.  Although some delay will be tolerated or even caused by the court system, Katzman Estate Law lawyers make sure to advance their cases as quickly as possible.  Delay never helps our cases.  

Should I challenge a will on principle? 

Absolutely not. Given the cost, risk, and energy required, a will challenge should not be brought because of emotion or resentment.  A will challenge should be beneficial for a client from a financial perspective.  Although will challenges are always emotional to some degree, the primary motivation behind a will challenge should be that a financial wrong was committed and the court’s assistance is required to correct it.

How much does it cost to challenge a will?

The cost of taking a will challenge all the way through to a judgment may be tremendous.  It can cost tens of thousands of dollars or more, but there are alternatives.  The cost to obtain medical, financial, and legal documents is far more manageable and will provide an objector with the information necessary to gauge the strength of their case.  To see a client through an Application for Directions on an hourly rate takes about $7,500 to $12,500, depending on the case and how aggressively it is resisted.  

To avoid having a client invest potentially tens of thousands of dollars or more on a will challenge in hourly fees, Katzman Estate Law accepts will challenge cases on a contingency fee basis.  This means that we charge a percentage of what a client receives from an estate.  Most law firms are unwilling to offer contingency arrangements on will challenges because it requires a law firm to take on great risk.  Hourly rates are standard.  We may need to start a case on an hourly basis in order to obtain the necessary medical, financial, and legal documents to evaluate the strength of a case before converting it into a contingency arrangement, especially if most documents are unavailable at the time of the initial consultation.  

Why are the documents so important on a will challenge?

Documents obtained during the course of a will challenge play a tremendous role in the outcome.  

It is one thing to allege that a deceased person suffered from debilitating mental conditions; it is another to prove it.  Medical records may contain information about the progression of dementia or Alzheimer’s Disease and sometimes contain cognitive assessments that tested a person’s cognitive abilities before a will was drafted, or at least around the same time.  In a he-said, she-said case, what doctors said will often break the tie.  

Almost always, lawyers only draft wills and have them signed when they feel that the individuals understand the consequences of what they are signing and are not unduly influenced by other parties.  The will-drafting lawyer sometimes only had limited or incorrect information to make that assessment.  The will-drafting lawyer’s file reveals what they knew about the person’s mental and physical condition, what questions they asked, and what responses they received.  These files are often quite thin and may not support the validity of a will as much as a defender may like.  Will-drafting lawyers have an obligation to probe into the capacity and true intentions of a person asking for a will, but is not unusual for will-drafting lawyers to fall short.  When a will-drafting lawyer’s file is incompatible with medical and bank records, a will challenge is more likely to succeed.         

What are the time limits for will challenges?

There are several answers to this question.  The easiest answer is that will challenges in Ontario must generally be brought within two years of the date of death of the person whose will you are challenging.  The more complicated answer is that assets may be distributed far earlier than that, which can cause problems for anyone seeking to challenge a will.  If the assets have been distributed by the estate before you bring a will challenge, this can make a will challenge academic, rather than profitable.  The best time to challenge a will is as soon as possible following the passing of the deceased.  This allows a lawyer to intercept an application for probate with a Notice of Objection, which will often prevent assets from being moved out of an estate.  If a will challenge is going to be brought, a lawyer’s first thought should be to secure estate funds quickly.  

How do I get a copy of the will?  

In theory, if you are not listed as a beneficiary of a will, you are not entitled to a copy.  Often, lawyers and executors and trustees will not provide a copy of a will to a potential objector willingly.  A lawyer can apply to the court to obtain a copy of a will and copies of any prior wills as well.  This is an order typically requested at the same time that a will challenge is brought.  Will challengers are often at an information disadvantage and may have to bring a challenge to even see a copy of the will.  

Who can challenge a will?

A will can be challenged by anyone with a “financial interest in an estate”, which means a probable inheritor under a prior will.  If there is no prior will, this could be someone who inherits because of their familial relationship to the deceased, including a wife, husband, daughter, son, or possibly the parents of a deceased individual.  This means that you cannot challenge a will for on someone else’s behalf.  

Is a will challenge really what I need?

A will challenge is an all-or-nothing attack on the validity of a will.  Even if a client has doubts with respect to the validity of a will, they may be more concerned with the trustworthiness of the executor, or feel that they have been inadequately provided for as a dependent or spouse.  Before challenging a will, other options identified on this website should be considered as they may better suit a case, including:

1. Executor or trustee removal: to be used when a client wants to remove an executor or trustee and have a court appoint a new one. 
2. Dependency claim:  When a “dependent”, who may be a child or common law spouse of the deceased, is inadequately provided for in a will, the court can order additional money to be paid to the dependant.  
3. Spousal election: A married person has a powerful option on the death of their spouse.  Essentially, the surviving spouse can choose to inherit under a will or receive what they could have in a divorce.   

The alternatives to a will challenge may be less expensive and have a higher chance of success.  An experienced estate litigation lawyer will consider whether a will change is in a client’s best interest, or whether a better option lies elsewhere.  

The need for an estate litigation lawyer

You should contact an estate litigation lawyer if you would have inherited under a prior will or on intestacy and you suspect that a will may be invalid.  

You will have to contact a lawyer if a party has filed a Notice of Objection against a will that you have tried to probate. That document will prevent you from moving forward.  

Free consultations and results before fees on a will challenge

Katzman Estate Law offers free consultations for will challenges and will dispute issues and can be reached at 844-602-4242.  On your first call, you will have an honest conversation with an estate litigation lawyer about whether you may be successful with a will challenge or in defending a will.

Katzman Estate Law is willing to invest in its clients.  In addition to offering hourly rates, Katzman Estate Law offers contingency fee arrangements.  In a contingency fee arrangement, a client only pays their lawyer when he or she receives money from a successful resolution of their case.  We have offices in Windsor, Chatham, Sarnia and the Greater Toronto Area, but also have the technological resources to represent anyone for an Ontario matter.