There is no Automatic Right to Challenge a Will

Case comment - Bitaxis Estate v. Bitaxis 2023 ONCA 66 – There is no Automatic Right to Challenge a Will

In January 2023, the Ontario Court of Appeal issued its decision on Bitaxis Estate v. Bitaxis, 2023 ONCA 66. In this case, the Court confirmed that there is no automatic right to challenge a will. The decision is consistent with a previous court decision in Neuberger Estate v. York, 2016 ONCA 191 which addressed the matter in greater depth.

The decision reaffirms that there is no automatic right to challenge a will and states that under Rule 75.06 (3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a will challenge is within the Court’s discretion. This, in turn, means that if a Notice of Objection lacks merit, the Court may vacate the Notice of Objection before documentary discovery or examinations.

A person seeking to challenge must adduce, or point, to some evidence that puts into question the validity of the testamentary instrument that is being propounded.

In its ruling, the Court noted at paragraph 4 that:

An interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. To meet the evidentiary threshold, the person seeking to challenge a will must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded.

Recent jurisprudence has provided more clarity on what an objector must establish on a will challenge. Bare allegations and mere suspicions are not enough to meet the minimal evidentiary threshold. Also, there must be an air of reality of the allegations. See McBeath v. Wright, 2021 ONSC 4494, at paras 14 and 15.

In Seepa v. Seepa, 2017 ONSC 5368, Justice Myers cited the principles from Neuberger and the policy concerns underlying them and, at para. 35, explained how they should be applied:

At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subject to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estate cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.

In other words, a Notice of Objection should contain some evidence to support a finding of invalidity on an established ground such as undue influence, lack of capacity, noncompliance with the formal requirements, or fraud.

Estate litigators should be aware of this minimal evidentiary threshold when preparing and reviewing Notices of Objection.

So, if you take anything away, take this. There is no automatic right to challenge a will. Many estate litigators have dealt with meritless will challenges that cost the estate a significant amount of money. The Bitaxis case and earlier decisions at the Ontario Court of Appeal of Ontario and the Ontario Superior affirm that a party can seek an order to vacate a Notice of Objection before documentary discovery and/or examinations if the challenge lacks merit.