How to Bring a Claim Against an Estate in Ontario

A will challenge is a proceeding in which someone disputes the validity of the purported last will and testament of a deceased. Grounds for challenging the validity of a will include:

The onus of proof of testamentary capacity rests on those propounding the will. They must establish, on a balance of probabilities, that the deceased had the requisite level of testamentary capacity when the will was executed. If undue influence is alleged, the onus of proof rests on those alleging the undue influence.

Proceedings to challenge a will should be commenced in the Superior Court of Justice in the jurisdiction in which the deceased last resided. Proceedings are commenced in one of two ways:

Dependents of an estate can also make claims for support in accordance with Part V of the SLRA if the deceased did not make adequate provision for the proper support of the dependent. This is regardless of whether the deceased died with or without a will. Applications for support must be commenced within 6 months from the date on which the certificate of appointment of estate trustee was issued (SLRA, s. 61(1)).

One thing to note is that the rights and entitlements of common law spouses differ from those of married spouses in the context of claims against the estate Common law spouses are not statutorily entitled to the preferential share of the estate in an intestacy nor do they have the right to elect in favour of an equalization payment. Common law spouses have the same priority to administer the estate (no property entitlement) or to make a claim against the estate, as a dependent.

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