Know more about contesting a will in Canada, such as the law that it’s based on, the legal grounds, and the time limits, among other aspects
A will is made so that the wants and wishes of a testator are followed even after death. Are heirs and beneficiaries allowed to contest the will of their loved ones? What does Canadian law say about contesting a will?
This article is for lawyers who want to educate their clients about contesting a will. It will also discuss the basics of wills and laws of succession in Canada as a good starting point for clients.
What are the Canadian laws of succession?
The statutes on wills, succession, and estates in Canada are under the jurisdiction of each province and territory. This means that every province and territory (except Québec) has enacted their own law. Québec’s successional laws, meanwhile, are outlined in Québec’s Civil Code.
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These provincial and territorial laws on wills, succession, and estates discuss the following:
- steps in making a handwritten or formal will
- formalities in making a will
- process of probate and administration of estates
- grounds for contesting a will
- rules that apply when a person dies intestate (without a will)
Dying with a will
When a testator (the person who makes the will) leaves behind a will, it must follow all the requirements set by the law.
Whether it’s a holographic/handwritten or a formal/notarial will, there are specific requirements that Canadian laws provide for each type of will. This video that explains some of the basic requirements to make a valid and legal will in Canada:
For more resources on Canadian laws on wills and succession, visit and bookmark our Trusts and Estates page.
Dying without a will
Aside from the provisions regarding wills and their validity, Canada’s will, succession, and estate laws also state what will happen when a person dies without a will. In this case, which is also called intestate succession, the order of succession as outlined in each provincial and territorial law will apply.
The order of succession will dictate how much the ascendants (parents), descendants (children), surviving spouse, and other family members shall receive from the estate of the deceased.
The law also covers matters regarding adopted family members.
Who can contest a will in Canada?
According to the Canadian law, the persons who can contest a will are the testator’s:
- spouse
- parent
- children
The person contesting the will is called the plaintiff during court proceedings.
People not related to the testator may not contest a will in Canada.
Specific rules on who can contest a will
Each provincial and territorial law on wills, estates, and succession has specific rules that apply to the plaintiff who is contesting a will.
For example, under British Columbia law, a spouse is not only someone who was married to the deceased testator. It also includes those who lived with the deceased testator before they died, for at least two years, and in a marriage-like relationship.
Another specific rule that may apply to persons contesting a will are those regarding adopted children. In most cases, an adopted child cannot inherit from their birth parent except through a will.
This means that an adopted child may not contest the will of their birth parent. However, adopted children have the right to contest the will of their adoptive parent.
What are the grounds for contesting a will in Canada?
The specific grounds for contesting a will in Canada are set out by the provincial and territorial laws on wills and succession. This is in addition to the interpretation of the courts of these grounds, as found in Canada’s common law.
One may contest a will if it violates the provisions of these laws. While these may vary in every province and territory, the grounds for contesting a will in Canada are:
- fraudulent wills and forged wills
- formalities of wills are not followed
- lack of adequate provision or conditions for a spouse, child, or dependents
- lack of testamentary or legal capacity to make a will
- undue or unwarranted influence
Each ground is briefly explained below. It’s still important to consult with a wills and estates lawyer if one’s circumstances apply to any of these grounds.
1. Fraud and forgery
In contesting a will, fraud may mean that the will was not the testator’s, or that it was altered or changed without the testator’s consent. It may also amount to forgery of either the signature of the testator or the will's provisions.
Other examples of fraud or forgery are:
- removing some of the will’s pages
- substituting some pages or provisions
- inducing the testator to change their will based on a false cause
2. Lack of formalities
A common reason for contesting a will in Canada is that the formalities required by law were not followed. In other words, the will that is not validly executed may be contested.
As for holographic wills, some of the common pitfalls when it comes to its formalities under Canadian laws may include:
- when it’s not entirely written
- lack of testator’s signature
On the other hand, these are some of the lacking requisites that may invalidate formal or notarial wills:
- lack of testator’s signature
- requirements as to witnesses were not followed
- not notarized
For guidelines on writing iron-clad wills, read our guide on how to craft valid wills.
Witnesses to a formal/notarial will
There are also additional rules that testators must take regarding the validity of their witnesses. In most provinces and territories, a witness to a will must not be among the heirs or beneficiaries of the testator.
To be a valid witness, a person must also:
- be of sound mind
- be of legal age
They must also sign the will in the presence of the testator and the other witnesses.
If these rules are not followed, a notarial or formal will can be contested because it was not properly witnessed.
3. Lack of provision or conditions for a spouse, child, or dependants
Under the Canadian laws on wills and succession, a person who is legally entitled to support from the deceased testator may contest a will if it does not have adequate provisions on support.
For instance, contesting a will under Ontario’s Succession Law Reform Act based on this ground is granted to a dependant, who are the deceased’s:
- spouse
- parent
- child
- brother or sister
In this case, the court may issue an order for support, which will be satisfied from the estate of the deceased.
4. Lack of testamentary capacity
One of the essential requirements in Canada regarding testators is that they must be of sound mind and of legal age. These are called testamentary capacity, which must be present at the time the will was made.
After the plaintiff establishes the lack of testamentary capacity, the burden shifts to the party upholding the will to prove that the testator had the necessary capacity when making the will.
Sound mind
When contesting a will based on sound mind, courts tend to evaluate the matter on a case-by-case basis.
Nevertheless, common law has explained the meaning of sound mind when it comes to testamentary or legal capacity in making a will. To be of sound mind, a testator must at least:
- understand the effects of making a will
- know the extent of the properties to be disposed of
- understand the extent of their gifts and bequeaths
- know the persons (heirs or beneficiaries) who will benefit from the will
5. Undue or unwarranted influence
As defined by common law on estates, wills, and succession, unwarranted or undue influence is one of the grounds in contesting a will.
Undue influence is the control, influence, or pressure exerted by a person over the testator. This prevents the testator from acting freely, intelligently, and voluntarily.
It may also refer to the constraint imposed on the testator by another person, which forces the testator to do something, which they would not have done without such pressure or constraint.
While undue influence may be exerted by any person over a testator, common law also states other circumstances where there is an increased undue influence, such as when the testator:
- is dependent for emotional and physical needs
- is socially isolated
- recently experienced family conflict or bereavement
- made a new will that is inconsistent with their prior wills
- made changes in their will, along with the other changes to other legal documents
Test of undue influence
Common law also provides for the test of undue influence. This will help both lawyers and clients in deciding whether to use this ground in contesting the will of a family member.
Under this test, the court will first examine the relationship between the testator and the person alleged to have exerted undue influence. Here, internal factors will be looked at, such as dependency, control, power, etc.
Next, the nature of the transaction will be examined. At this point, the court will look at whether there was a dominant relationship between the testator and the influencer.
After the party who alleges undue influence has established these points, the burden of proof now shifts to other party. They will now have to prove that there was no undue influence.
This video explains the grounds of undue influence and testamentary capacity when contesting a will in Canada:
How much does it cost to contest a will in Canada?
Contesting a will in Canada is costly. Consult with a wills and estates lawyer for specific costs, since legal fees will vary depending on each province and territory.
There’s also the risk of paying the other party’s legal costs, especially if ordered by the court upon the losing party.
How long does a person have to contest a will in Canada?
Contesting a will in Canada is subject to time limits. These are found either in the provincial and territorial laws on wills, succession, and estates, or in their statute of limitations.
Within six months
Contesting a will because it does not have adequate provisions for their maintenance and support must be done within six months from the grant of probate.
This only applies to dependents, such as a child or a spouse, regarding the will of their parent or spouse, respectively.
Within two years
Any person who wants to contest a will on the grounds of undue influence and testamentary capacity must follow certain time limits and deadlines.
Under the provincial and territorial limitation statutes, contesting a will must be done within 2 years from when the person knows they have a claim. If not, their claim to contest or invalidate a will shall be barred because of these limitation periods.
Not all provinces and territories in Canada follow the 2-year limitation period for contesting a will. Some provinces may have shorter, or even longer, limitation periods. As such, it’s important to consult with a lawyer upon knowing that there might be undue influence.
Head to our Special Report on the Top Wills, Trusts, and Estate Law Boutiques 2023–24 for a list of law firms that can help in all aspects of estate law.
