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Aug 29, 2019

In Ontario, not everyone can challenge a will

By: Barbara Green

By Barbara Green and Rebecca Betel, published in The Lawyer's Daily 

(August 29, 2019, 9:03 AM EDT) --  
Barbara Green %>
Barbara Green
Rebecca Betel %>
Rebecca Betel
Often a will is challenged by named beneficiaries who believe they are entitled to more, or by those excluded from the will altogether. It is possible for a will to be challenged, in certain circumstances, by dependents of a deceased. Dependant’s relief claims involve a different analysis and are not subject to the commentary below.

In Ontario, not every person is permitted at law to challenge a will. And so, when beginning a will challenge, the first issue is whether the individual has legal standing. That legal threshold issue in Ontario is set out in Rule 75 of the Rules of Civil Procedure, that provides that “[a]n estate trustee or any person appearing to have a financial interest in an estate may make an application …” for a will to be proven valid.

The ability to make an application does not carry with it an automatic right to require a will be proven. Put another way, just because one has standing doesn’t mean one can challenge a will’s validity. Just because a beneficiary is disappointed or excluded from the will altogether, doesn’t mean they have the right to challenge a potentially valid will.

In recent years, there have been developments with how will challenges are brought forward in Ontario.

In the 2016 decision of Neuberger Estate v. York 2016 ONCA 303, the Ontario Court of Appeal reflected on how the operation of Rule 75 impacts standing to challenge a will. While the facts of that case were very complex, for the purposes of this article the relevant facts are as follows.

The testator’s two daughters, both beneficiaries under the will, realized on their benefits in unequal amounts. The applicant daughter, who was to receive less under the will, brought a will challenge claiming that her father did not have capacity at the time he made his will (among other reasons).

The applicant’s son sought to join as an applicant to challenge the will. The applicant’s son, being the testator’s grandson and a beneficiary under the will, was a person with financial interest in the estate, and thus had standing to bring a will challenge. He assumed that this standing brought with it an automatic right to have the will’s validity assessed. He was wrong.

Justice Eileen Gillese, writing for a unanimous bench, found that the operation of Rule 75 allowed a person with standing to request a testamentary instrument be proven, but did not guarantee such a request be granted. Additionally, the court found that “an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved.” [emphasis added]

This minimum evidentiary threshold is rooted, at least in part, by the court's desire to protect the testator and the estate. As Justice Gillese noted: “In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.”

So, while the testator’s grandson had standing to join the application, he did not have an automatic right to put the will to solemn proof. The takeaway? Standing to challenge a will is not determinative of one’s ability to force the will to be proven. Standing is merely one piece of the application process.

In 2017, Justice Frederick Myers considered Neuberger Estate in his decision of Seepa v. Seepa 2017 ONSC 5368. In Seepa, a will challenge was brought by a disinherited son. This case saw a much more typical will challenge in which the deceased had two children, but only one inherited under the parent’s will. Justice Myers concluded that parties are served well when court “directions are made on a bespoke basis to fit the measurements of the case.” Courts appear to be taking a holistic approach to will challenges.

Standing to bring a will challenge is the first step in many cases. However, it is prudent to beware of the minimum evidentiary threshold Rule 75 carries.

Barbara Green is a commercial litigator and partner at Robins Appleby LLP. Rebecca Betel is an articling student at the firm.

In Ontario, not everyone can challenge a will - The Lawyer's Daily

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