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Can a Frivolous Will Challenge Be Stopped?

2 minute read

In Ontario, the Court has recently emphasized that a cultural shift is necessary in Will challenges to prevent disgruntled relatives who are excluded from an Estate being able to force the Estate to proceed through time consuming and expensive process to prove the validity of the Will.

In the past, a person who was unhappy with a Will simply needed to raise an objection regarding the validity of the Will and the Estate Trustee would have to proceed through the formal process of proving the validity of the Will with the beneficiaries waiting for the outcome before receiving their inheritance. The objection by a person unhappy with a Will was a “matter of right”.

Although a motion for summary judgment may have been available to avoid going all of the way to a trial, such motions are still an expensive and time-consuming process for Estates and Estate Trustees.

The Courts are now moving away from the philosophy that you have a “right” to challenge a Will. Although a party can still file a Notice of Objection to challenge the validity of a Will, such a challenge will not proceed further unless there is some evidence to support the basis of the challenge.

The objector is not required to prove their case at the early stage of a challenge, but a minimum evidentiary threshold is required to proceed further.

If the party objecting to the Will does present some evidence to support the objection, then the Estate Trustee has an opportunity to respond to that evidence. Only when the Estate Trustee is not able to successfully answer such that there appears to be some basis for the challenge, should the Will challenge move forward.

The expectation now is that baseless or frivolous objections, which were often made to extract some payment from the Estate to settle, will be shut down at the outset.

If you think the validity of a Will is questionable, or if you act for an Estate where someone is raising concerns about the validity of the Will, contact a lawyer to obtain advice with respect to the challenge of the Will.

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David G. Waites

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