Insights & Articles

< Back to Insights & Articles

When Can you Contest a Will?

When a friend or relative dies, you may think the deceased has provided for you in their Will. If they have not, you may consider contesting the validity of the Will.

The following are the four main grounds for challenging or contesting the validity of a Will:

  1. Undue influence;
  2. Lack of mental capacity;
  3. Public policy; and
  4. Technical problems with the Will.

Dependants who are not properly provided for in a Will can also make a claim for support pursuant to Ontario’s Succession Law Reform Act. However, this type of claim does not invalidate a Will, but simply redistributes the available funds. There are also circumstances where a spouse of the deceased can elect to receive money from the Estate pursuant to the Family Law Act, rather than the Will. These topics are outside of the scope of this article.

Undue Influence:

A person’s Will must be a recording of their true wishes. If an individual is forced or coerced into signing a Will that does not reflect their wishes, a court may declare the Will invalid. Not every form of persuasion by third parties can invalidate a Will. However, if the influence is based on fraud, cheating, or is otherwise “undue” as defined by the case law, a Will may be set aside.

Lack of Mental Capacity:

Individuals must have the mental capacity to sign a Will. Generally, to prepare and sign a Will, an individual must understand and appreciate what they own, the effect of signing a Will, and their obligations, such as providing for their dependants.

Public Policy:

Testamentary freedom is not absolute. Some bequests in Wills may be illegal (for example bequests that promote the breaking of laws). Other Wills can be declared invalid simply because of the reasons for making specific bequests, including those that are discriminatory. 

Technical problems with the Will:

There are more than twenty statutes in Ontario (written laws passed by the provincial and federal governments) which affect estate planning and administration. Some of these laws have specific requirements for how Wills are drafted, including formal requirements for witnesses and signing. A contravention of proper Will drafting could lead a court to declare a Will invalid.

Every case is different, including the contesting of Wills. Each case is decided by the court on the specific facts and evidence. If you have any questions about contesting a Will, or other Estate Litigation questions, please do not hesitate to contact a member of the Wills, Estates & Trusts Law team.