A comprehensive reference for Ontario estate litigators — covering will challenge grounds (capacity and undue influence), dependants relief under the SLRA, passing of accounts, and estate trustee removal.
Ontario estate litigation has grown significantly as aging demographics and larger estates create more disputes among beneficiaries, family members, and estate trustees. The intersection of incapacity, blended families, and significant assets creates fertile ground for will challenges, dependants relief applications, and trustee removal proceedings.
This guide covers the five main grounds to challenge a will, the six types of estate claims Ontario litigators encounter, dependants relief procedure under the Succession Law Reform Act, and the grounds for estate trustee removal under the Trustee Act.
Where suspicious circumstances are raised by the challenger, the burden of proving knowledge and approval shifts to the party propounding the will. The Supreme Court of Canada in Vout v Hay [1995] 2 SCR 876 confirmed:
| Claim | Who Can Bring It | Time Limit | Remedy |
|---|---|---|---|
| Will Challenge (Contentious Probate) | Any interested person (beneficiary, intestate heir) | Before probate granted; or petition to revoke probate within 6 months | Refusal to grant probate; revocation of certificate of appointment |
| Dependants Relief | Spouse, parent, child, sibling who was supported by deceased | 6 months from grant of certificate of appointment (SLRA s. 61) | Support order from estate in court's discretion |
| Passing of Accounts | Beneficiary, residuary beneficiary, creditor | Any time during administration; final accounts before distribution | Approval, disallowance, surcharge, or increased compensation |
| Estate Trustee Removal | Beneficiary or co-trustee | Any time during administration | Removal and appointment of replacement; costs |
| Breach of Fiduciary Duty | Beneficiary | Generally 2 years from discovery | Account of profits; surcharge; disgorgement; personal liability |
| Unjust Enrichment / Constructive Trust | Common-law spouse; contributor to deceased's estate | Generally 2 years from death or discovery | Trust over specific property; monetary award |
Part V of the Succession Law Reform Act, RSO 1990, c S.26 gives dependants the right to apply for support from the estate if the deceased failed to make adequate provision. The application must be commenced within 6 months of the grant of the certificate of appointment.
Spouse, parent, child, brother, or sister of the deceased who was being supported (wholly or in part) by the deceased immediately before death.
Court considers: claimant's current assets and means; claimant's capacity to contribute to own support; claimant's age and physical condition; the needs of other dependants; deceased's reasons for not providing for the dependant.
Court orders support from the estate — either a lump sum or periodic payments. The court can order support even against specific bequests.
Courts recognize a testator's moral obligation to provide for dependants. Evidence of relationship, support during lifetime, and need at death are key.
Common-law spouses who cohabited for 3+ years, or in a relationship of permanence with a child, qualify as dependants under the SLRA.
Dependants relief claims have priority over most estate distributions. The estate cannot be fully distributed until the 6-month application period expires.
The main grounds to challenge a will in Ontario are: (1) lack of testamentary capacity — the testator did not know and approve the contents of the will, did not understand the nature of a will and its effects, did not know the nature and extent of the property, and did not appreciate the claims of those who might expect a benefit; (2) undue influence — the testator's free agency was overborne by another person's coercive influence; (3) fraud or forgery; and (4) failure to comply with formal requirements under the Succession Law Reform Act.
Under Part V of the Succession Law Reform Act (SLRA), a 'dependant' who has not been adequately provided for by the deceased's will or intestacy can apply for support from the estate. Dependants include: a spouse (married or common-law), parent, child, brother, or sister of the deceased who was being supported by the deceased immediately before death. The court has broad discretion to order support from the estate.
A passing of accounts is a court-supervised review of an estate trustee's or attorney's financial administration of the estate or property. Under Rule 74 of the Rules of Civil Procedure, the estate trustee files formal accounts (Form 74.43) with the court. Beneficiaries can object to specific transactions. The court approves or disallows accounts and may award compensation to the trustee or surcharge the trustee for improper dealings.
Under s. 37 of the Trustee Act, a court can remove an estate trustee on the application of a beneficiary where: the trustee has been absent from Ontario for more than 6 months; refuses or is unfit to act; cannot be found; or becomes incapable. Courts also have inherent jurisdiction to remove a trustee where there is a conflict of interest, misconduct, or where the trustee's continuation endangers the trust property or beneficiaries' interests.
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