With an aging Canadian population, will challenges are becoming increasingly common. Historically, we typically saw larger estates becoming the subject of such challenges. More and more, however, we are now seeing even modest estates becoming the subject of such challenges.
Essentially, the will challenge process involves a claim by an interested person that a deceased person's last will is invalid. A will can be challenged on the basis that it lacks some of the components that the law requires to be present in a valid will. For example, the will may not have been properly witnessed, or the testator may have been mentally incapable at the time it was signed. If all of the legally necessary elements are there, the court will uphold the will. If not, the will is declared to be invalid.
Where a will is successfully challenged, and there is no prior will, the estate will be administered on the basis of the laws of intestacy. In Ontario, this is governed by the Succession Law Reform Act, R.S.O. 1990, c S.26. Where the deceased had a valid prior will, the estate will usually be administered on the basis of the prior will.
One of the first steps in challenging a will in Ontario is to file a Notice of Objection with the court. This step stops the court from issuing a Certificate of Appointment (also known as probate), a process whereby the court validates the will and confirms the executor's authority to administer the deceased person's estate. A Notice of Objection sits passively on file until someone applies for a Certificate of Appointment, at which point the applicant will be informed about the notice and the probate process will be put on hold until the issues raised in the Notice of Objection can be dealt with.
The filing of a Notice of Objection is a trigger point that gets the ball rolling toward litigation of the will challenge. Once a Notice of Objection is filed, there are specific steps that will need to be taken in a timely way, to further the litigation process, ultimately leading to an Application or Motion for Directions to a judge for orders as to how the proceeding will be conducted. As a Certificate of Appointment may not be required in every estate, a will challenge can also be commenced by starting an Application for Directions directly.
Will challenges differ from other forms of litigation in that they are not usually started with a Statement of Claim. Rather, once a Notice of Objection is filed, the parties will seek an Order Giving Directions from the Court. This kind of order maps out the timeframe, parameters and framework of the law suit. An Order Giving Directions will usually narrowly define the legal issues involved, provide for administration of the estate during the litigation, and provide the parties with the access to the documents that they require.
Legal Issues Involved
A will can be challenged on a number of grounds. These can include a lack of testamentary capacity at the time that the will was executed, undue influence on the testator, a lack of knowledge and approval of the contents of the signed will on the part of the testator, or a failure to meet the statutory requirements for a duly executed will. It is also common for those challenging a will to assert that the will was made under suspicious circumstances. The Order Giving Directions will identify which specific legal issues are to be determined in the proceeding.
Administration of the Estate During Litigation
A challenge to a will often means that there will be some disagreement as to who has the right to administer the estate, as the appointment of an Estate Trustee (executor) is determined by the last valid will. Once the Notice of Objection is filed, the Estate Trustee will be unable to obtain a Certificate of Appointment until the matter is resolved. Some arrangement needs to be put into place to ensure that accruing bills and liabilities are paid and assets are maintained or sold. In order to facilitate the administration (or partial administration) of the estate during litigation, the Court will in many cases appoint an Estate Trustee During Litigation (“ETDL”). The ETDL will be tasked with administering the estate until a final determination can be made as to the validity of the will and therefore the validity of the appointment of the executor named in that will. An ETDL is subject to the control of the courts and can do most things that an estate trustee could do, except to distribute the estate.
In will challenges cases, the parties often do not have all the facts required to substantiate or defend the challenge. Third party evidence including medical reports, the files of the lawyer that drafted the will, and financial records are crucial pieces of evidence required to develop each party’s case. However, if the will is in dispute, there may be no person with the authority to obtain the records. Further, the records may be confidential or privileged information. The Order Giving Directions usually waives this privilege and compels third parties to produce any relevant evidence in their possession to the parties to litigation, who will then be able to present that information to the court in the proceeding.
Once a will challenge is initiated, a series of presumptions and evidentiary rules come into play with respect to what needs to be proven and which party bears the burden of proof. We will discuss this and additional issues related to challenging wills in our next article.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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