Litigation involving estates has become more common. One example is applications to challenge wills. Such applications tend to be made when someone believes that they should have been named as a beneficiary in the will of a loved one but has not been.

This article provides a basic introduction to will challenges based on undue influence in Ontario and sets out five things you need to know. Challenging a will can be a time-consuming, difficult and emotional process. If you think you have been left out of a will, it is important to obtain legal advice from an experienced estate litigation lawyer.

What is a will challenge?

A will is a legal document that outlines the testator’s wishes regarding the distribution of their assets and property upon their death. A will can be challenged (also known as contested) in court by anyone with a financial interest in the estate. This includes any person who would have been entitled to inherit if there was no will or was a dependent of the deceased.

It may not be possible to challenge a will based on the fact that it is unfair, although there are some limits on the ability of the testator in distributing their assets. For example, dependents can make a claim even if not included in the will.

Wills are often challenged on one or more of the following grounds:

• Formality – problems with the actual will itself, such as lack of a witness;
• Mental/testamentary capacity – testator did not have the capacity to understand what they were doing when making the will; or
• Undue influence.

Often, the person challenging the will attempts to invalidate it by relying on a number of different grounds, such as both lack of mental or testamentary capacity and undue influence.

What is undue influence?

Undue influence refers to the situation where the testator was coerced or forced to make a will that is not reflective of their true intentions. The statement of Justice Cullity of the Supreme Court of Ontario in Banton v Banton is often quoted:

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his will-making power to the other person.

While there is no need to show physical violence or threats, there needs to be outright and overpowering coercion of the testator. Mere influence by itself is not sufficient to amount to undue influence. Attempting to influence the decision of a testator will not constitute undue influence unless the pleading amounts to coercion. In other words, some amount of persuasion and influence is permissible, as long as it falls short of coercion.

Who bears the burden of proof?

The burden of proving undue influence is on the person challenging the will. They must show, on the balance of probabilities, that the mind of the testator was overborne by the influence exerted by another person, such that there was no voluntary approval of the will.

What do you need to prove to establish undue influence?

Proving undue influence can be difficult. There is no need to identify specific coercion at the time the will was executed by the testator. It is sufficient that the surrounding circumstances show undue influence.

Justice Penny of the Superior Court of Justice of Ontario, in Gironda v Gironda, helpfully laid out six indicators of undue influence:

Indications of the potential for undue influence include where the testator is dependent on the beneficiary for emotional and physical needs, where the testator is socially isolated, where the testator has experienced recent family conflict, where the testator has experienced recent bereavement, where the testator has made a new will not consistent with prior wills, and where the testator has made testamentary changes simultaneously with changes to other legal documents such as powers of attorney.

Other factors might include whether there were substantial pre-death transfers of wealth; whether a lawyer previously unknown to the testator and chosen by the alleged influencer was used; whether the alleged influencer communicated instructions to the lawyer acting for the testator; and whether the alleged influencer received a draft of the document prior to the testator.

If all of the circumstances indicate that the testator did not have an independent mind that could withstand competing influences, then a court might find undue influence.

What are the possible outcomes of a challenge?

If a court finds undue influence, the will is declared invalid and the person has died intestate. The property is distributed by applying the intestacy rules found in Part II of the Succession Law Reform Act 1990. In general, the people who can inherit include the surviving spouse and closest next-of-kin. A common-law spouse does not inherit under this Act.

Contact NULaw in Toronto for Guidance on Challenging a Will and Assistance with Will Disputes

If you are thinking about challenging the will of a family member or friend, the results-oriented, effective estate lawyer at NULaw in Toronto can help. We will help you navigate your options and formulate a pragmatic game plan for moving forward. We will take the time to help you understand your legal rights and will identify any risks and costs that can be anticipated. We also help executors to defend wills against challenges from dissatisfied beneficiaries or would-be beneficiaries.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of estate law issues and regularly provide honest and practical legal advice on these matters including all types of will disputes. Contact us online or at 416-481-5604 to book a consultation.