The first step to challenging a Will in Ontario depends on whether probate been granted? Any person can go to the local court registrar and do a search to see if the court has granted a certificate of appointment which established the validity of the Will (Probate). If probate has not been granted then the person objecting to the will can file a form called “a Notice of Objection” with the court registrar. If probate has been granted then the person objecting to the will has to bring a motion for the return of the certificate of appointment.
Why is this first step so important? Once the Notice of Objection is filed and in effect the Court Registrar will not issue a certificate of appointment (Probate). It’s important to remember that the granting of probate tells the world that the Will in question is the last will and testament of the deceased and a valid document. It tells the world that the executor is in charge of the assets of the deceased. There is a risk that a dishonest or uninformed estate trustee, when granted Probate, can sell the assets of the estate to an innocent third party or even taken them out of the jurisdiction. This means that even if the will challenge is successful collecting on that judgment may be frustrated because the assets are already gone and possibly untraceable.
Even if the probate application is made in Toronto the person challenging the will can file his/her objection with their local court registrar because Ontario’s court system is linked. But be careful – it is not instantaneous. I have seen certificate of appointments being issued in one city after the filing of notices of objection in another city because they were not inputted into the system yet and the registrar did not know there was any objection. The best practice is to file the notice of objection with the court registrar where the application for probate has been started.
It’s important to remember that filing a Notice of Objection is only one important step in the litigation. The real first step for anyone challenging a will is to seek the advice of a lawyer familiar with the process. That lawyer can review the file and advise you if there is a worthwhile challenge to the will. Furthermore, filing a Notice of Objection is a relatively simple inexpensive step. But, if it is not done properly and as a result the court registrar issues a certificate of appointment. then a more costly process (a motion for the return of the certificate of appointment) will have to be taken.
It is also very important to know that estate assets may be at risk even if the person challenging the will files a notice of objection. Remember, the power of the estate trustee/executor to deal with estate assets comes from the Will itself – not the certificate of appointment. It’s just that there are certain institutions like banks and insurance companies who need to be certain that the documents being shown to them is really the last will and testament of the deceased. There are assets, like the shares in private corporations and real estate (under certain circumstances) that can be transferred without the estate trustee getting probate. An experience lawyer can guide you in how to go to court, freeze the other assets and challenge the will.
Some on line links that may be helpful
Rules 74.12(1) (b) and 75.03 – Objection to Issuing Certificate of Appointment. See http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm
Notice of Objection Form 75.1. See http://www.ontariocourtforms.on.ca/english/civil
To Find Lawyers. See the Lawyer Referral Service provided by the Law Society of Upper Canada at http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/
It would be a mistake to treat this blog as substantive legal advice. For those considering commencing an application to compell an accounting, there is no substitute for hiring a competent lawyer whose own research, analysis and judgment should be canvassed.