What If I Need to Contest Being Left out of a Parent’s Will?

close-up of lawyer's hands - meeting with clientFinding out that you have been left out of your parent’s will can be shocking and upsetting, especially if you were not expecting it. In Ontario, you may have a legal avenue to contest a parent’s will.

In this article from Greg Monforton & Partners, we discuss the grounds for contesting a will. We also explain the legal procedures involved and potential outcomes.

Need help contesting your parent’s will? Our legal team at Greg Monforton & Partners is highly respected in the community, and we work diligently to help our clients win favourable outcomes. Find out if we may be able to help you.

Call 24/7 to discuss potential legal actions. (866) 320-4770

What Are the Grounds for Contesting a Parent’s Will?

In Canada, a child can challenge a parent’s will under certain circumstances provided under the law.

The Parent’s Mental Capacity Is In Question

A will can be challenged if the parent who made the will, called the testator, did not have the mental capacity to understand their decisions at the time. In this situation, the law will need to determine whether the parent was in their right mind and fully capable of:

  • Understanding the nature and value of their assets
  • Determining their beneficiaries
  • Comprehending the legal impact if they changed their beneficiaries

Undue Influence

Another reason to challenge a will is undue influence. These grounds may exist if someone pressures or manipulates the testator into making decisions that do not reflect their true wishes.

Improper Execution of a Will

You may have grounds to contest a will due to improper execution. Proper legal procedures must be followed for a will to be considered valid. In Canada, the testator must sign the will in the presence of two witnesses. These same two witnesses must also sign the will.

The Will Was Tampered With or Forged

If your parent’s will was tampered with or forged by someone else, it is invalid. Proving a will was tampered with or forged by someone else, however, is extremely difficult.

What About Filing a Dependants’ Relief Claim?

If you were receiving financial support from your deceased parent, you may have grounds to file a dependants’ relief claim. However, you must be able to prove it. Once established, this claim allows you to seek financial support from the estate if it is not provided in the will.

You need to act quickly if you want to file a dependants’ relief claim. Under the Succession Law Reform Act (SLRA) in Ontario, you must file within six months of the probate being issued. The law requires evidence of your prior dependency. You must also show that the will does not offer sufficient support.

The court will consider various factors, including your financial needs, the size of the estate and your relationship to the deceased. If the court finds the will does not provide adequate support, it can order the estate to provide it for you.

SLRA Changes to the Rules on Dependants’ Support

In 2023, the SLRA updated the rules on the support of dependants, allowing more people to be able to claim support, including:

  • Children
  • Grandchildren
  • Siblings
  • Anyone else being financially supported prior to the deceased’s death

How Do I Challenge a Will on Legal Grounds?

If probate has not yet been granted, you can file a notice of objection to probate. This prevents the will from being executed until your objections are resolved. If probate has already been granted, you must start a court action to challenge the will.

You will need to gather evidence to support your claim. This can include medical records that show the testator lacked mental capacity, witness testimonies about undue influence, or documentation proving improper execution or fraud.

The court will review the evidence and decide whether the will is valid. If the court finds in your favor, the will or specific provisions may be invalidated.

What If There Is No Valid Will?

If there is no previously existing valid will, or an existing will is invalidated, the estate will be distributed according to the rules of intestate succession. In other words, the government will determine how your parent’s estate is distributed. In Ontario, the SLRA governs intestate succession. This law typically provides for children to inherit a share of the estate.

Before you can benefit from intestate succession, you must prove there is no will or that any existing will is invalid through a court challenge.

Why Should I Seek Legal Help to Contest a Will?

The legal process of contesting a will is complex. There are many intricacies to the law that most people do not know about or understand. It is crucial to seek advice from a lawyer who has extensive knowledge of estate law.

At Greg Monforton & Partners, we are here to help. We are deeply committed to helping you understand your rights and protecting them. Our knowledgeable estate litigation lawyers in Windsor have in-depth knowledge of these laws.

Our firm is prepared to evaluate your situation, advise you on the strength of your claim, and represent you in court if necessary.

Call our law offices today. We are here to help. (866) 320-4770