How To Contest A Will In Canada?

How To Contest A Will In Canada?

Written by Lisa Rennie
Fact-checked by Caitlin Wood
Last Updated June 13, 2022

When a loved one passes away, it’s not uncommon for some beneficiaries of the deceased to feel that the estate has not been distributed according to the Will, or that they did not receive what they believe they deserved. As such, some beneficiaries may choose to contest a Will. 

But is this even possible? If so, how can a Will be successfully contested in Canada?

When Can You Contest A Will In Canada?

When a Will is created properly, it is considered a legal document, which means the content distribution as specified in the Will must be carried out as noted. A Will cannot be arbitrarily contested without significant reasons. That said, there may be certain circumstances in which a Will may be contested in Canada:

Lack Of Mental Capacity 

A Will may be contested if the person making the Will — also known as the “testator” — did not have the mental capacity to make a Will. The testator may be required to undergo a testamentary capacity test, and the court will then determine the person’s mental state based on medical evidence. 

As long as the testator understands the implications of their Will, the document should stand; the person does not necessarily have to understand every word written. 

Undue Influence

If the testator was influenced by force by someone else, this may be grounds to contest the Will. In this situation, another person may coerce or threaten the testator to overpower their mind to change their Will. 

The court will consider how vulnerable the testator is, the amount of pressure put on the testator, and how different the Will may be from previous Wills. The burden of proof lies with the person being accused of influencing the testator, who must show that they did not coerce the testator. 

Improper Execution Of Will

A Will must go through certain steps in order for it to be considered valid. Some beneficiaries may argue that the will of a loved one was improperly executed. 

Fraud

A Will may be fought if it is believed that it was forged in some way. For instance, if someone drafted up a Will in someone else’s name and forged their signature, this would be considered fraudulent. In this case, the Will would be invalid.

Interpretation

The person drafting a Will must understand what is being included in the Will and approve of its contents. In other words, they must have knowledge of what they are signing and that it Will be legally binding. If the testator did not understand and approve of the Will and its contents, then the Will may be considered invalid.

No Provisions For Dependants Or Spouse

Dependants must be taken care of in most parts of Canada, and spouses may have a stake in an estate. As such, provisions must be made for dependants or the spouse. If not, the Will may be contested. 

Adult children may also challenge a Will if the division of property is considered to be unfair. While there may be no legal obligations to provide for adult children, many provinces support the ethical obligation for provisions to be made if sufficient assets are available. There may also be a legal obligation for the testator to provide for a spouse if they have not been adequately provided for.

epilogue

How To Contest A Will In Canada

Challenging a Will is a complicated process and must be done in court. You’d be well-advised to hire an estate lawyer to help you out rather than try to contest it on your own. 

To contest a Will, a Notice of Objection will be prepared and filed with the court. A motion will then be brought forth for direction of the court or the return of the certificate appointment, which requires several court applications. If this process is not done properly, it can be extremely expensive and time-consuming for everyone involved. 

The following chart outlines the individual laws and acts that govern Wills in each province and territory: 

OntarioSuccession Law Reform Act
QuebecSuccession Duties Act
British ColumbiaWills, Estates and Succession Act
AlbertaWills and Succession Act
ManitobaThe Wills Act
SaskatchewanThe Wills Act
Nova ScotiaWills Act
Prince Edward IslandProbate Act
New BrunswickDevolution of Estates Act
Newfoundland and LabradorWills Act
YukonWills Act
Northwest TerritoriesWills Act
NunavutWills Act

Reasons You May Want To Contest A Will But Cannot

It’s not easy to contest a Will. There are several situations in which you would have no grounds for challenging a Will, such as the following:

Verbal Promises 

As mentioned earlier, a Will must be in writing in order for it to have legal standing. Any verbal agreements made between you and the testator do not count in estate law. 

You Think The Will Is Unfair

While there may be certain provisions for dependents and spouses, there’s no law that states that people must be treated fairly, including when dividing an estate amongst children. Unfortunately, disputes often arise among adult children when it comes to how an estate is divided. One sibling may be given a larger percentage of the estate, which can leave the other sibling feeling cheated. 

However, situations like these are not grounds to contest a Will. That said, there have been some cases in which the courts have re-written Wills to ensure a fairer distribution of an estate. 

You Aren’t On The Will 

While some people may have a legitimate argument to be included in a Will — particularly dependants and a spouse — others do not necessarily have a claim in an estate, including adult children (except in BC).

The Will Is Digital 

Using an online platform is a legitimate way to draft a Will. As such a Will created in this manner is not grounds to challenge it. There are plenty of legal online Will services that help Canadians draft up their Wills that are just as legally binding as Wills created the traditional way. 

As long as the drafting of the Will follows a certain protocol — including being in written form and signed in the presence of witnesses — it is legally binding. 

Online Platforms You Can Make A Will
Om Company ReviewLearn More
Legalwills.ca ReviewLearn More
Willful ReviewLearn More
FormalWill.ca ReviewLearn More
Epilogue Wills ReviewLearn More

How Can You Stop Your Will From Being Challenged?

The purpose of creating a Will is to ensure your wishes are met when you pass away, including how your assets are distributed. But there is always a chance that someone may want to contest your Will, either while you’re still living or after you’ve passed on. 

As mentioned, contesting a Will requires court proceedings, which can be complicated without legal assistance. There must be solid grounds for challenging a Will, so it’s not as easy as some may think. The fact is, any Will can be contested, no matter how it was created, but there are some ways to help ensure that any challenges against your Will are stopped:

  • Prove that you are competent when drafting your Will.
  • Ensure that there is no evidence that you are under any influence when creating your Will.
  • Make sure your Will is executed properly by having it in written form and signed and witnessed by two independent witnesses.
  • Explain your decisions to your loved ones to ensure they understand the reasoning for your decisions.
  • Include a no-contest clause, which states that if a beneficiary contests the Will and loses, they Will not receive anything. The risk of challenging the Will can be too great, which may deter anyone from challenging the Will. 
  • Record the signing of your Will.

Here are 5 reasons you need a Will in Canada.

What Makes A Will Legal In Canada?

In order for a Will to be valid, it must meet the following:

  • Be in writing
  • Be signed by the testator in the presence of two witnesses
  • The two witnesses must also be in each other’s presence 
  • The witnesses cannot be beneficiaries of the Will or be married to a beneficiary (in some provinces)

The testator must be the age of majority in the proving they live in unless they are in the armed forces.

Final Thoughts

Having a will in place is important, especially if you have minor children or a vast estate. Equally important, however, is that you ensure that your Will is created using the help of a lawyer or a valid online will-generating service. 

As long as you ensure that you follow the proper protocols when creating your Will, there should be little recourse for anyone attempting to contest it. On the other hand, if you’re the one looking to challenge a Will, you’ll need to identify any potential loopholes in drafting the Will in order to successfully challenge it.


Rating of 5/5 based on 1 vote.

Lisa has been working as a personal finance writer for more than a decade, creating unique content that helps to educate Canadian consumers in the realms of real estate, mortgages, investing and financial health. For years, she held her real estate license in Toronto, Ontario before giving it up to pursue writing within this realm and related niches. Lisa is very serious about smart money management and helping others do the same.

Click on the star to rate it!

How useful was this post?

Research & Compare

Canada's Loan Comparison Platform

Largest Lender Network In Canada

Save time and money with Loans Canada. Research and compare lenders before you apply. Share your experiences with Canada's top lenders.

Save With Loans Canada

Special Offers

Borrow $500-$50,000

Borrow $500-$50,000
NEW!

Don’t pay until March with this offer from our partner, Fairstone.* Ends January 31st.

View Offer
Cashback & Bonus Offer

Cashback & Bonus Offer
Ends March 1st, 2023

New Offer! Get up to $2,000 cashback + a $50 bonus on signing up. Conditions apply.

View Offer
Earn 5% Cash Back With Neo

Earn 5% Cash Back With Neo
No annual fee!

Earn an average 5%¹ cash back at thousands of partners and at least 0.5%² cashback guaranteed.

View Offer
Build Credit For $10/Month

Build Credit For $10/Month
Popular

With KOHO’s prepaid card you can build a better credit score for just $10/month.

View Offer
Best Personal Loan Provider by Greedy Rates
Icon

Confidential & risk-free

All consultations and conversations with Loans Canada and its partners are confidential and risk-free. Speak with a trusted specialist today and see how we can help you achieve your financial goals faster. Loans Canada and its partners will never ask you for an upfront fee, deposit or insurance payments on a loan. Loans Canada is not a mortgage broker and does not arrange mortgage loans or any other type of financial service.

When you apply for a Loans Canada service, our website simply refers your request to qualified third party providers who can assist you with your search. Loans Canada may receive compensation from the offers shown on its website.

Only provide your information to trusted sources and be aware of online phishing scams and the risks associated with them, including identity theft and financial loss. Nothing on this website constitutes professional and/or financial advice.

Your data is protected and your connection is encrypted.

Loans Canada Services Are 100% Free. Disclaimer

Build Credit For Just $10/Month

With KOHO's prepaid card you can build a better credit score for just $10/month.