Testamentary capacity under Banks v Goodfellow, undue influence, suspicious circumstances, 5 grounds to challenge a will, dependants relief under SLRA Part V, and limitation periods for Ontario estate litigation.
Estate litigation involving will challenges and dependants relief claims is among the most emotionally charged and technically complex work Ontario estate lawyers handle. The intersection of capacity law, undue influence principles, and the statutory dependants relief regime requires careful navigation.
Unlike British Columbia's Wills, Estates and Succession Act — which gives courts broad power to vary a will where it fails to make adequate provision — Ontario courts cannot rewrite a will. The Ontario remedies are more limited: set aside the will or order support under Part V of the Succession Law Reform Act (SLRA). This distinction shapes strategy in contested estate matters.
This guide covers the five grounds to challenge a will in Ontario, the testamentary capacity test, suspicious circumstances doctrine, dependants relief eligibility and factors, and the limitation periods estate litigators must track.
Ontario courts apply the four-part test from Banks v Goodfellow (1870) LR 5 QB 549, which remains the governing standard. All four elements must be satisfied at the moment of execution — not before or after.
| Element | Test | Evidence Sources |
|---|---|---|
| Nature of the act | Testator understands they are making a will and what a will does | Certificate of incapacity, medical records, lawyer notes, video signing |
| Extent of property | Testator has a general understanding of what they own — precise figures not required | Asset listing discussions recorded in drafting notes; ability to describe property |
| Natural objects of bounty | Testator can identify people who might reasonably expect to benefit and considers their claims | Instruction letters naming family members and explaining exclusions |
| No disorder of the mind | No mental disorder that poisons affections, perverts sense of right, or prevents natural faculties | Cognitive assessments, dementia diagnosis timing, paranoid delusions evidence |
Burden of proof: The party propounding the will bears the initial burden of proving due execution. If there are suspicious circumstances, the burden shifts to the propounder to affirmatively prove knowledge and approval. A diagnosis of dementia does not automatically establish incapacity — courts look at capacity at the specific moment of execution, which can vary in cognitive conditions.
Test: Banks v Goodfellow 4-part test at the time of execution
Burden: Propounding party proves due execution; challenger bears evidential burden to raise doubt
Testator may have capacity on a good day despite general dementia — capacity fluctuates
Test: A third party overpowered the testator such that the will is not an expression of free volition
Burden: Challenger bears the burden of proof — mere persuasion or pressure is insufficient
No presumption of undue influence in Ontario; courts look for coercion that overcomes free will
Test: Will was not executed by the testator or testator was deceived about what they were signing
Burden: Challenger proves fraud or forgery on a balance of probabilities
Handwriting expert evidence and execution circumstances are key
Test: Will does not satisfy SLRA requirements: in writing, signed at end, two witnesses present simultaneously
Burden: Propounding party must prove proper execution; challenger raises defects
Courts have authority under SLRA s. 21.1 to validate wills with execution defects if testamentary intent is clear
Test: Testator did not know and approve the contents of the will at the time of execution
Burden: Propounding party bears the burden; suspicious circumstances shift burden to propounding party
Different from capacity — testator may have capacity but not know what they are signing
Where suspicious circumstances surround the will's preparation or execution, the burden of proving knowledge and approval shifts to the propounder. Courts have identified a non-exhaustive list of circumstances that can raise suspicion.
| Suspicious Factor | Legal Significance |
|---|---|
| Beneficiary participated in instructions or preparation | Very strong suspicious circumstance; raises inference of undue influence |
| Drastic change from prior testamentary pattern | Particularly significant where prior wills were consistent and change is unexplained |
| Testator in a weakened physical or mental state | Suggests vulnerability to influence; does not on its own establish incapacity |
| Natural heirs excluded without apparent reason | Court will look for rational explanation; unexplained exclusion raises questions |
| Haste in preparing or executing the will | Raised where will executed shortly before death without apparent urgency |
| Instructions given when sole beneficiary present | Best practice is for beneficiaries to leave the room during will instructions |
Even where a will is valid, a dependant of the testator may apply to court for adequate provision from the estate under Part V of the Succession Law Reform Act. The application must be commenced within 6 months from the grant of probate — this is a hard deadline.
Courts consider the nature and duration of the relationship, the dependant's need and ability to support themselves, the testator's reasons for the disposition, any legal obligations to the dependant, and the size of the estate. The court aims to provide adequate support, not to equalise the estate.
| Dependant Category | Eligibility | Key Factors |
|---|---|---|
| Spouse (married) | Eligible as dependant; equalization claim under FLA may be more favourable | Court considers equalization claim, length of marriage, standard of living |
| Common-law spouse | Eligible if cohabited continuously for 3 years or in relationship of permanence with child | No equalization right — dependants relief is primary remedy |
| Minor children | Always eligible regardless of financial need | Court will order support to maintain standard of living; child support tables used as guide |
| Adult children (unable to support themselves) | Eligible only if unable to support themselves due to disability or other recognized reason | Adult independent children are generally not dependants even if disinherited |
| Parents / grandparents | Eligible if they were dependants of the testator — actual dependency required | Must show financial dependence on testator at time of death |
Election for spouses: A surviving spouse may elect between taking under the will and making an equalization claim under the Family Law Act. The equalization claim can be significantly more valuable than the testamentary provision where the deceased had substantial assets accumulated during the marriage. The election must be made within 6 months of the spouse's death.
2 years from discoverability (Limitations Act, 2002)
Practical challenge: discovery usually occurs at or shortly after probate is granted
6 months from grant of letters probate or administration
Hard deadline under SLRA s. 61; court has limited discretion to extend
2 years from discoverability
Constructive trust claims by common-law partners not included in will
No limitation — court can order at any time; 5-year delay may trigger adverse inference
Beneficiaries can apply to compel passing of accounts at any time
No limitation on application to remove
Courts require ongoing unfitness or misconduct; not simply disagreement
6 months from death of the testator spouse
Failure to elect within 6 months means estate proceeds under the will
A will may be challenged in Ontario on the following grounds: lack of testamentary capacity (the testator did not meet the Banks v Goodfellow 4-part test), undue influence (a third party overpowered the testator's free will), fraud or forgery, failure to satisfy formal execution requirements under the Succession Law Reform Act, and lack of knowledge and approval (the testator did not know the contents of the document they signed).
Under Part V of the Succession Law Reform Act, a dependant may apply to court for adequate provision from the estate. Dependants include the testator's spouse (including common-law spouse of 3+ years or in a relationship of permanence with a child), children (including adult children who are unable to support themselves), grandchildren, and parents. The claim must be commenced within 6 months of the grant of probate.
Testamentary capacity in Ontario follows the Banks v Goodfellow (1870) test: the testator must (1) understand the nature of the act of making a will and its effects; (2) understand the extent of the property being disposed of; (3) understand the claims of those who might reasonably expect to benefit; and (4) not be suffering from any disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties in disposing of their property.
Ontario courts do not generally vary the terms of a valid will as they do in British Columbia under the Wills, Estates and Succession Act. The Ontario court's primary remedy is to declare a will (or part of it) invalid or to order adequate provision for dependants under Part V of the Succession Law Reform Act. Courts will not rewrite a will to achieve a more equitable distribution absent a valid ground to challenge.
Atticus helps Ontario wills and estates lawyers track limitation periods, manage trust accounting, and keep estate files LSO-compliant from instruction to closing.
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