“Testamentary freedom” is a person’s freedom to decide what happens to their property on death. In Ontario, that freedom is not absolute. The Succession Law Reform Act (SLRA) sets important limits and formal requirements that must be met for a Will to be valid and enforceable.

Testate succession means the deceased left a valid Will. For a Will to be valid in Ontario, it must:

• Be in writing; and

• Comply with the formal execution requirements (e.g., proper signing and witnessing).

If these requirements are not met, the document may be invalid—even if it reflects the deceased’s wishes.

As our population ages, families are seeing more complex estates and more disputes. A Will challenge is a court proceeding to:

• Question whether the Will-maker (the testator) had capacity at the time of signing; and/or

• Set aside a Will due to problems such as undue influence, fraud, or improper execution.

You may have a viable challenge where there is evidence of:

1. Lack of testamentary capacity

2. Lack of knowledge and approval of the Will’s contents

3. Suspicious circumstances or undue influence

4. Non-compliance with due execution requirements

5. Fraud

You must show a financial interest in the estate (an interest that can be valued in money or its equivalent). This typically includes beneficiaries under an earlier Will, intestate heirs, or others with a monetary claim against the estate.

The person named in the Will as Estate Trustee (also called Executor) typically propounds—i.e., defends—the Will. They carry significant responsibilities, including preserving estate assets and responding to challenges.

The onus of proving testamentary capacity generally rests with the party propounding the Will. They must establish, on a balance of probabilities, that the testator had the requisite capacity at the time of execution and knew and approved the contents of the Will.

Canadian law follows principles articulated in Banks v. Goodfellow, as affirmed in Ontario by Re Schwartz. In practical terms, at the time of making the Will, the testator must be sufficiently clear in understanding and memory to:

1. Understand the nature and effect of making a Will;

2. Know the nature and extent of their property, in a general way;

3. Identify the “natural objects of their bounty” (the people who might reasonably expect to benefit, such as close family);

4. Appreciate how these factors interrelate (property, potential beneficiaries, and the plan of distribution); and

5. Form a coherent, settled intention about how the property should be distributed.

A mental disorder that poisons affections, clouds judgment, or overpowers free agency can undermine capacity even where the testator appears otherwise functional.

Courts focus on what the testator understood at the time of signing. Depending on the issues, parties may seek disclosure of the deceased’s:

• Medical records (capacity assessments, family physician notes, hospital records)

• Lawyer’s file for the Will (instructions, notes, drafts, correspondence)

• Financial records (banking history, account activity, POA transactions)

These materials can shed light on capacity, knowledge and approval, suspicious circumstances, or undue influence.

Even where basic capacity exists, a Will may still be set aside if the testator did not truly understand and approve its contents. Suspicious circumstances—for example, a substantial gift to a caregiver who arranged the lawyer and isolated the testator—can shift how the court assesses the evidence. Undue influence occurs where someone overbears the testator’s free will; it need not involve overt threats and is often proven circumstantially.

Ontario law requires specific formalities for a Will’s execution (including appropriate witnesses). Errors in witnessing, beneficiary-witnesses, or informal documents can be fatal to validity. Compliance at the time of signing is critical.