Estate Litigation in Ontario: What to Know

When people contact me about an estate, they usually have a fairly specific concern. An executor isn’t answering questions. A new will appeared near the end of someone’s life. A parent was helping an adult child financially, but the will makes no provision for them.

Sometimes those concerns can be addressed by obtaining documents and getting proper answers. Other times, court involvement is necessary. Either way, it helps to understand what kind of claim you may have before taking steps that are expensive or difficult to undo.

Here are the estate disputes I see most often in Ontario, the deadlines worth knowing about, and what the process can look like.

Where estate disputes tend to start

Will challenges. A will cannot be set aside simply because someone dislikes the result. There needs to be a legal issue, such as a lack of testamentary capacity, undue influence, a failure to know and approve of the will’s contents, or a problem with how it was signed. Ontario courts can, in some circumstances, validate a document that does not meet the usual signing requirements.

Dependant support claims. A person may have a claim for financial support even if the will leaves them nothing. Part V of the Succession Law Reform Act applies to certain spouses, qualifying common-law partners, children, parents and siblings whom the deceased was supporting, or was legally obliged to support, immediately before death. Whether someone qualifies depends on their circumstances, not just their relationship to the deceased.

Concerns about an estate trustee (executor). A beneficiary may be having trouble getting information, or may question how the executor is handling money, selling property or paying themselves. Depending on the problem, the court can require an accounting, review compensation or, in an appropriate case, remove the estate trustee.

Passing of accounts. This is the court process for reviewing an estate trustee’s financial records. It gives interested parties an opportunity to question receipts, payments and compensation. Sometimes an accounting answers the questions; sometimes it raises new ones.

Joint accounts and transfers made before death. A parent adds one child to a bank account, or transfers a house into joint names. Was it intended as a gift, or was the child meant to hold the asset for the estate? The answer is not always obvious from the paperwork alone.

Surviving spouse’s rights. A legally married surviving spouse may be entitled to elect equalization of net family property under the Family Law Act rather than take under the will or on an intestacy. Common-law partners do not have that election, although other claims may be available to them.

Powers of attorney and guardianship. These matters arise while the person is still alive. The concerns may involve the handling of their finances, decisions about personal care or who should act on their behalf. They are not technically disputes about a deceased person’s estate, but the issues often overlap.

The deadlines matter

One of the first things I want to know is when the person died, whether a Certificate of Appointment has been issued and whether the estate has started distributing assets. Different claims have different deadlines, so there is no single time limit that covers every estate dispute.

Claim or process	General timing
Spousal election under the Family Law Act	Usually within 6 months of death. The court may extend the time in appropriate circumstances.
Dependant support (SLRA Part V)	Usually within 6 months after the Certificate of Appointment is issued. A late claim requires the court’s permission and can reach only estate property still undistributed.
Will challenge	Generally a 2-year limitation period, subject to discoverability. Discovery is often presumed at death, but that presumption can be rebutted.
Other civil claims arising from estate disputes	Often 2 years from when the claim was, or ought to have been, discovered. Exceptions and the nature of the claim matter.
Passing of accounts / objections to accounts	Objections raised on a passing of accounts do not automatically attract the ordinary 2-year limitation period. Other related claims may have different rules.

This table is a starting point, not a way to calculate the deadline in a particular case. The law treats a will challenge differently from an objection to an executor’s accounts, for example. If you think there may be a claim, have the dates reviewed before assuming there is time to wait.

What happens when an estate dispute arises?

Start with the documents. Find the will and any earlier wills you have access to. Confirm whether a Certificate of Appointment has been issued. Financial records, correspondence and the will-drafting lawyer’s file may also become important, depending on the dispute.
Consider whether anything needs to be protected. Before a Certificate of Appointment is issued, a Notice of Objection under Rule 75.03 may prevent the certificate from being granted while the objection is addressed. It does not freeze estate assets. If an executor has already been appointed, preserving property may require a different court order.
Determine the proper court process. Many estate disputes proceed by application or a motion for directions; others require an action. The court may give directions about the parties, disclosure and the steps needed to move the case forward.
Gather the evidence. This may include affidavits, estate records, bank statements, medical information or documents from the lawyer who prepared the will. What matters most will depend on the issues being raised.
Consider mediation. In Toronto, Ottawa and Windsor, Rule 75.1 requires mediation in certain contested estate, trust and substitute-decision matters, subject to exemptions. In other regions, parties may agree to mediate or the court may order it. A resolution does not always require a trial.
Have the matter decided if necessary. If the parties cannot resolve the dispute, the court will determine the issues at a hearing or trial.

I also act as a mediator, and I have found that the preparation makes a difference. If everyone arrives with the relevant documents and a clear understanding of the issues, there is a much better chance of having a useful discussion about settlement.

Questions I’m often asked

Can I challenge a will because I was left out? Possibly, but being excluded is not enough by itself. You need a recognized legal basis to challenge the will. A claim for dependant support is a separate type of claim and has its own requirements.

Can a financially independent adult child challenge an unfair will? Not just because it seems unfair. In Ontario, a parent can generally choose not to leave property to an independent adult child. There may be other grounds to challenge a will, but unfairness alone is not one of them.

Does the estate pay everyone’s legal fees? No. The court considers the result of the litigation and the parties’ conduct, among other things. There are circumstances in which costs may be paid from the estate, particularly where the dispute arose from a genuine problem created by the deceased, but that is not automatic.

How long will an estate dispute take? There is no reliable standard timeline. Some matters settle after documents are exchanged or at mediation. Cases involving significant disclosure problems, multiple parties or a trial can take considerably longer.

Can an executor be removed? Yes, but not just because the beneficiaries and executor do not get along. The court is concerned with protecting the estate and ensuring it can be properly administered.

Do I need a lawyer who practises estate litigation? It is worth speaking to someone familiar with estate procedures. The options, evidence and deadlines can be quite different from those in an ordinary civil dispute.

If you have concerns about an estate

If something about a will or an executor’s conduct does not seem right, start by collecting what you have and noting the key dates. You may not need to start litigation, but it is useful to understand your options before the estate is distributed.

Reach us at galelaw.ca or visit us at 320 Bay Street, Suite 101, Toronto.

This article provides general information about Ontario law and is not legal advice. The facts of each case matter.