This summer, the OBA Trusts and Estates Section held a helpful and interesting CPD series about Will challenges: Your Comprehensive Guide to Will Challenges. This series presents practical information for lawyers on Will challenges, and includes six sessions. In the first session, “Preparing the Application”, the panel explained the grounds for challenging a Will, some key questions to ask in an initial client interview, the process of objecting to the issuance of a certificate of appointment of estate trustee, and some of the statutory provisions of which lawyers who encounter Will challenges ought to be aware.
Grounds to Challenge a Will
The speakers discussed the bases on which a Will can be challenged. For a Will to be valid, it must comply with the formalities of due execution. Historically, Ontario has engaged a strict interpretation model in which judges do not have the discretion to declare a Will valid where there are any technical irregularities. In April 2021, however, Bill 245 received Royal Assent. This bill will enable judges of the Superior Court of Justice to declare that a Will is valid as if it had been properly executed, even if it is not in strict compliance with the statutory framework.
As discussed by the panel, an applicant can raise several grounds in challenging a Will. First, she can allege that the testator did not have capacity when giving instructions or signing the Will. This determination is a legal test, not a medical one, and requires the highest degree of capacity known to the law. A challenger needs to consider whether the lack of capacity was ongoing or merely episodic. Second, the challenger can allege that the testator did not have knowledge and approval of the contents of the Will. Third, the challenger can allege that the testator was unduly influenced. Speakers cautioned that someone wishing to challenge a will on this ground should bear in mind that undue influence is very difficult to establish because it is in essence an allegation of fraud and coercion. Finally, a challenger can raise “suspicious circumstances,” which is not a ground in itself, but rather, requires the propounder of the Will to dispel any of the concerns raised.
Questions to ask your Client
In an initial client interview, the client will not likely have all the evidence required to launch a challenge. There are some key questions, which the panel shared, that will assist a lawyer in determining whether the challenge is viable. Questions to gauge capacity could include inquiries into the cause of death, the stage of dementia or Alzheimer’s if present, any emotional distress or behavioural change, and any medications and addictions. Capacity is complex, and many factors contribute to the overall picture. Questions related to undue influence should include inquiries into the beneficiaries under the new Will, the vulnerability of the testator, any changes to the Will, unexpected or unusual meetings with the drafting lawyer, and any differences in the Will compared to a prior consistent pattern. Importantly, in considering undue influence, the speakers emphasized that a Will need not be “fair”, and influence and persuasion is allowed under the law; it is only when it reaches the level of undue influence that issues will arise.
The Process of Objecting to Probate
The panel had a helpful discussion of the initial process involved in challenging a Will. If a certificate of appointment of estate trustee has not yet been granted by the court, the challenger should file a notice of objection to the issuance of a certificate of appointment of estate trustee. By so doing, the objector gains traction, because it prevents the court from issuing a certificate of appointment, and the executor cannot move forward with the probate process. The objector gains some power to make disclosure requests and to enter negotiations. These objections need to be more than boilerplate, according to the Court in Smith v Rotstein. In reality, however, the panel shared that the notices of objection that are issued tend to be relatively simple because it is more efficient and cost effective. Moreover, if the challenge does move forward, the objection will be supplemented by further pleadings.
If probate has been granted, however, the challenger needs to bring an application to revoke or return the certificate of appointment under Rules 74.05 and 74.04. These Rules allow the certificate to be revoked if issued in error or as a result of fraud. This would be the case if the Will is not valid. The challenger needs to pass a threshold stage of viability in the challenge: she must satisfy the court that she should be allowed to challenge a Will that has been settled. As discussed by the panel, challenges are still possible after the Will is settled because of the court’s inquisitorial obligation to uncover whether the testator’s last Will represents the legitimate intent of the deceased.
Statutes to Consider
A Will challenger needs to consider what orders to seek and the basis upon which she can seek that relief. Several statutes and regulations may be relevant. These include the Courts of Justice Act, R.S.O. 1990, c. C43, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Estates Act, R.S.O. 1990, c. E.21, and the Succession Law Reform Act, R.S.O. 1990, c. S.26.
The first program of the series provided a great overview of the early stages of a Will challenge. Keep an eye out for future articles discussing the other programs in the series. If the program is of interest to you, I encourage you to check it out yourself so you can hear directly from the excellent panelists.
 Bill 245, Accelerating Access to Justice Act, 2021, SO 2021, c 4, online: <https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-245>.
 Banks v Goodfellow,  LR 5 QB 549 outlines the commonly used test in determining capacity.
 Vout v Hay, 125 DLR (4th) 431, 82 OAC 161.
 Re Estate of Ruth Smith; Smith v Rotstein, 2010 ONSC 2117.
 Newberger v York, 2016 ONCA 191.
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