Being Left Out of a Will Is Insufficient Reason Alone to Challenge It

November 9, 2022
lady signing contract

written on behalf of Feigenbaum Law

A common form of estate litigation is applications to challenge a Will. While the goal of creating a Will is to allow an estate to be distributed as per the testator’s wishes, money, family dynamics, and the technical nature of the law are all reasons a Will may be challenged.

In a recent decision of the Ontario Court of Appeal, a testator’s daughter discovered she had been left out of her mother’s Will while her siblings were beneficiaries of the estate. The Court was asked to rule on whether the distribution of the estate assets could be frozen while the applicant challenged the Will. The court’s decision shows us the framework used to determine whether a Will’s validity can be challenged and, specifically, the evidence needed to support allegations of a lack of testamentary capacity.

Daughter Challenges Will’s Validity After Being Disinherited

The testator in Johnson v. Johnson was the mother of three children. The testator died at the age of 99 on August 23, 2020. She had executed a Will five years earlier, in the summer of 2015. In that Will, the testator’s estate, valued at about $457,000, was left entirely to her daughter Janice and son Hugh, with nothing left to her second daughter, Nancy. Janice was named executor of the estate.

In June of 2021, Nancy commenced an action under Ontario’s Rules of Civil Procedure, seeking to have her mother’s Will proved in solemn form. This means she asked the courts to review evidence before determining whether the Will was valid. In most cases, this step is unnecessary and is typically only done if there are questions concerning the validity of a Will.  

Applicant Sought Production of Testator’s Records Through Will Challenge

Nancy’s position was that there was evidence indicating that the Will may have been invalid. She told the Court the circumstances around the Will’s creation were suspicious, and her mother lacked the necessary capacity to draft the Will. Nancy’s concerns about capacity were based on a significant change from an earlier 2007 Will, in which Nancy was named as a beneficiary. In the 2007 Will, the testator’s three children received equal portions of the estate. 

Nancy’s application specifically sought an order preventing the estate from being distributed to her siblings until the Court decided her challenge. She also sought the production of certain documents related to her mother and the estate, including medical, financial, and legal records.

At the initial application, the judge dismissed Nancy’s application after determining she failed to meet the minimal evidentiary threshold needed for the Court to require proof of the validity of the 2015 Will. 

Applicant Argued Application Judge Should Have Reviewed Documentation at Issue

In her appeal, Nancy argued that the application judge made an error in law by misapplying common law principles around Will challenges. She also stated that the application judge should not have dismissed her application without further examining the documentation that Nancy sought to have disclosed. 

The Court of Appeal referenced its 2016 decision in Neuberger v. York, which established that a person with an interest in an estate doesn’t have an absolute right to demand proof of a Will in solemn form. Instead, the Court has discretion on whether or not the Will needs to be proven to that degree. The Court quoted a section of the Neuberger decision which lays out the approach the court should follow:

“[A]n applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved.”

Falling Out Between Daughter and Mother Was Basis for Disinheritance; No Valid Reason to Challenge Will

In Nancy’s application, she sought to review documentation related to her mother. She said the application judge should have looked at this documentation as evidence before determining whether or not the Will needs to be proven in solemn form. 

The Court referred to the application judge’s finding that there were clear reasons for the mother’s change in beneficiaries. The evidence demonstrated that Nancy and her mother had a falling out in 2014. Nancy had been handling her mother’s finances when her mother became suspicious of some financial activity. She demanded a full accounting of her finances from Nancy, who failed to comply. Furthermore, Nancy’s siblings provided the Court with evidence it felt demonstrated that the testator had the capacity to draft a Will. 

As a result of these findings, the Court of Appeal dismissed Nancy’s appeal and rejected her request to have her legal costs paid out of the estate.

Feigenbaum Consulting Provides Trusted Representation in Estate Disputes in Toronto

The estate law team at Feigenbaum Consulting, led by Mark Feigenbaum, has extensive experience helping clients navigate the emotionally and financially complex world of estate litigation. The firm works with clients to provide comprehensive legal solutions that aim to resolve estate disputes swiftly. When litigation is required, Feigenbaum Consulting skillfully represents clients in the courtroom. The firm also helps clients mitigate legal and financial risks through multi-disciplinary estate planning. To schedule a confidential consultation, please contact the firm online or call 905-695-1269 (toll-free at 1-877-275-4792).


A Lesson in Parliament’s Power Over Eligible Tax Deductions

Personal Tax

A Lesson in Parliament’s Power Over Eligible Tax Deductions

March 22, 2023

Court Orders Child to Visit Mother for One Hour in Hospital

Family Law

Court Orders Child to Visit Mother for One Hour in Hospital

March 13, 2023

Dispute Over Business Loan Repayment Creates Disagreement Between Friends

Civil Litigation

Dispute Over Business Loan Repayment Creates Disagreement Between Friends

February 27, 2023

A Claim for Adverse Possession Halts Estate Distribution

Estate Litigation

A Claim for Adverse Possession Halts Estate Distribution

February 22, 2023

Employee Taxpayer Unable to Claim Commuting Expenses


Employee Taxpayer Unable to Claim Commuting Expenses

February 14, 2023