Few situations put more strain on a family than discovering, after a parent’s death, that there are two wills — an earlier one treating the children equally, and a later one that hands control or the lion’s share to a single person. Ontario law has a well-worn framework for resolving exactly this scenario, and knowing how it works helps families act quickly instead of watching estate assets drift while they argue.
The grounds for challenging a will in Ontario
A will can be attacked on a handful of recognized grounds: lack of testamentary capacity (the testator did not understand what they owned, what a will does, or who would naturally expect to inherit); undue influence (coercion that overbears the testator’s free will — more than mere persuasion); lack of knowledge and approval (the testator did not actually know and approve the contents); improper execution under the Succession Law Reform Act; and fraud or forgery. Being treated unfairly is not, by itself, a ground — Ontario testators have broad freedom, although dependants can bring a separate support claim.
Suspicious circumstances: how the burden of proof shifts
The Supreme Court of Canada’s decision in Vout v. Hay (1995) governs. A properly executed will normally enjoys a presumption of validity. But where the challenger points to suspicious circumstances — in how the will was prepared, in the testator’s capacity, or suggesting free will was overborne — that presumption is spent, and the person defending the will must affirmatively prove capacity and knowledge-and-approval. Undue influence is different: the burden of proving it stays with the challenger throughout.
Ontario courts have identified concrete red flags of undue influence, summarized in Tate v. Gueguegirre (2015): increasing isolation of the testator; dependence on the beneficiary; substantial transfers of wealth before death; a drastic, unexplained departure from earlier wills; and — most tellingly — the favoured beneficiary choosing the lawyer, giving the instructions and arranging the execution. A will drafted for an elderly testator with limited English, without independent legal advice or translation, and kept secret from the rest of the family, checks several of those boxes at once.
The Notice of Objection: how to pause probate
Anyone with a financial interest in the estate — a beneficiary under the disputed will, a beneficiary under a prior will, or an heir on intestacy — can file a Notice of Objection (Form 75.1) with the court under Rule 75.03 of the Rules of Civil Procedure, provided no Certificate of Appointment has yet been issued. The effect is immediate and powerful: the registrar will not issue a certificate while the objection stands. No court hearing is needed to trigger it. The objection lasts until it is withdrawn, removed by court order, or expires three years after filing.
Timing is everything. Once a certificate has already been issued, the challenger faces the far more expensive route of applying to revoke it. And the objection must state real grounds — vague or boilerplate objections can be struck as frivolous. After an objection is filed, a defined sequence follows: the applicant serves a Notice to Objector, the objector must respond with a Notice of Appearance within 20 days, and the matter proceeds to a motion or application for directions, where the court sets out the parties, the issues, disclosure of medical and legal records, and the path to mediation or trial.
What happens to the estate while everyone fights
This is the question I see families neglect most. While the will challenge is pending, probate is frozen — which means nobody has confirmed authority to deal with the assets. Meanwhile a mortgage may be coming due, a vacant house is losing its insurance coverage, property taxes accrue, and an heir with keys to the property may be acting as if they were already in charge. The courts’ answer is the appointment of a neutral Estate Trustee During Litigation (ETDL) under s. 28 of the Estates Act — a caretaker who preserves and manages the estate but cannot distribute it. Where the estate’s principal asset is real property under time pressure, an ETDL appointment is often the single most valuable interim step. I’ve written a full guide on the ETDL role separately.
Timelines, mediation and who pays the costs
Estate disputes in Toronto, Ottawa and Essex County go to mandatory mediation, and a substantial share settle there. Simple objections often resolve within six to twelve months; full validity fights commonly run one to two years or more. On costs, the modern rule from McDougald Estate v. Gooderham (2005, Ontario Court of Appeal) surprises many people: the default is now “loser pays,” as in ordinary civil litigation. Costs come out of the estate only where the testator caused the problem or there were genuinely reasonable grounds to question the will. Courts have warned bluntly that an estate is not “a kind of ATM bank machine” for litigants.
Frequently asked questions
How long do I have to contest a will in Ontario?
Generally two years from the date of death under the Limitations Act, 2002, subject to discoverability — but practically, act before a certificate issues. Filing early preserves leverage and avoids the cost of revocation proceedings.
Who can file a Notice of Objection?
Anyone who appears to have a financial interest in the estate — including beneficiaries of an earlier will and those who would inherit if there were no will at all.
Is a will made by someone with dementia automatically invalid?
No. Capacity is assessed at the time of signing and is task-specific. But medical evidence of confusion around the signing date — especially combined with suspicious circumstances — can shift the burden onto those defending the will.
If the later will is set aside, who inherits?
The last prior valid will governs. If there is none, the estate passes under Ontario’s intestacy rules. This is why beneficiaries of an earlier will always have standing to object.
Are two wills always a red flag?
Not at all — Ontario planners deliberately use “primary and secondary wills” to reduce Estate Administration Tax, and both operate together validly. The red flag is a later, secret will that displaces an earlier one under questionable circumstances.
The bottom line
A contested will is a marathon with a critical first hundred metres: file the objection before probate issues, secure the assets through a neutral caretaker, and gather the medical and drafting evidence early. Families that do those three things preserve both the estate and their options; families that don’t often find the fight is over the remains of an asset that was allowed to bleed value for two years.
Gurpinder Gaheer, BA (Hons), MBA, is a dual-licensed real estate broker and mortgage broker serving families, estate trustees and their advisors across Ontario. His practice includes estate and probate property sales, estate financing solutions, and acting as a neutral professional in contested estate matters. If your family is dealing with an estate where real property is at stake, you can reach him through gaheer.com/.
This article is general information, not legal, tax or financial advice. Estate matters are highly fact-specific — always consult a qualified Ontario estates lawyer about your own situation.