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In a recent Ontario Court of Appeal decision, the court ruled that a son did not have standing to challenge his father’s will because he had not been included in the said will or the father’s previous will.

Father Does Not Include Son in His Will

In 1996, a father of two created a will. Under the will, he left his entire estate to his wife (and mother to their two children) if she was alive 30 days after his death.

Then, three months before his death in 2019, he executed a new will, in which he also left his entire estate to the mother if she was alive 30 days after his death. Additionally, the 2019 will provided that, if the mother predeceased him, his primary estate would go to their daughter and the daughter’s children.

Neither will executed by the father left any part of his estate to his son.

Son Contests Father’s 2019 Will

Following the father’s death, his son brought a court motion seeking a declaration that the father’s 2019 will was invalid.

In response, the mother and the daughter moved to dismiss the son’s application on the ground that he had no standing to bring his motion. In support of this, they claimed that the son had no interest in the outcome of his challenge to the 2019 will because, even if it were found to be invalid, the 1996 will would apply and, under that will, the father also left his entire estate to the mother. As such, they argued that the son had no financial interest in the father’s estate and lacked status to bring his application.

The Law on Financial Interest in an Estate

The mother and the daughter relied on Rule 75.06(1) of the Rules of Civil Procedure in support of their argument, which reads:

75.06(1)           Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.”

As such, the mother and the daughter submitted that the son was not a person who appeared to have a financial interest in the father’s estate and, therefore, he lacked standing to bring an application to challenge the 2019 will.

In support of his motion, however, the son submitted that he had standing pursuant to s. 23 of the Estates Act, which reads:

“23    Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.”

In essence, it was the son’s contention that he had ample evidence capable of raising an inference of undue influence and suspicious circumstances in relation to the 2019 will. He claimed that the 2019 will was invalid as a result of undue influence by the wife and by his sister.

Thus, in the event that the existing will was set aside for those reasons, he would be entitled to a share of the father’s estate on intestacy as one of his surviving children. He therefore submitted that had a financial interest and standing to challenge the will.

Additionally, the son had commenced a civil action against the father’s estate in relation to the family business. The son therefore claimed that his civil action against the estate gave him standing under the will because he was making a claim to “property affected by the will”.

Lower Court Rules Son Does Not Have Standing

At trial, the application judge first held that the son had failed to provide sufficient evidence that the 1996 will was invalid or inauthentic for any reason. He thus reasoned that even if the 2019 will was found to be invalid, the 1996 will would apply and the father’s entire estate would go to the mother. As such, the court held that the son did not have sufficient standing to bring his application under
rule 75.06(1) of the Rules of Civil Procedure.

Additionally, in response to the son’s argument, the court held that s. 23 of the Estates Act did not provide a statutory basis separate from rule 75.06(1) for standing. Further, the court found that the son’s separate civil action did not give him standing.

As such, the court held that the Estates Act did not confer standing to the son to challenge the 2019 will where he would otherwise lack standing to do so.

The son appealed to the Ontario Court of Appeal.

Court of Appeal Rules Son Does Not have Standing

On appeal, the son’s main argument was that the application judge had erred in his interpretation of s. 23 of the Estates Act, arguing that his civil action against the estate gave him standing because he was making a claim to “property affected by the will”.

The Court of Appeal rejected the son’s argument, finding that s. 23 of the Estates Act provides discretionary jurisdiction to the application judge and the son had not identified any error in the judge’s exercise of his discretion.

In the result, the court dismissed the son’s appeal, finding that he did not have standing to challenge the father’s will. However, the court noted that the son could still pursue his claims in his civil action against the estate.

Contact Bader Law in Mississauga for Experienced Advice on Estate Matters

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.