When dealing with legal matters, it’s normal to feel overwhelmed and unsure about what to do next. You may have questions about your rights, the legal process, or what to expect. At Gowland, Boriss, we’re here to help.

These Frequently Asked Questions and Answers sections address some of the most common questions we hear from individuals.

If you need more personalized guidance, our team is just a phone call or email away. We are committed to helping you move forward with clarity and confidence.

 

705.743.7252 | 1.800.808.0189 | info@gowlandboriss.ca

Estate Litigation FAQs

1. What is estate litigation?

Estate litigation refers to legal disputes involving a deceased person’s estate. This can include challenges to a will, concerns about how an estate is being administered, disputes between beneficiaries, or claims for support by dependents. These cases often arise when there are concerns about fairness, capacity, or undue influence.

2. Can a will be challenged in Ontario?

Yes, a will can be challenged if there are valid legal concerns. Common reasons include doubts about the person’s mental capacity at the time the will was made, suspicion of undue influence, improper execution, or the existence of a newer will. If you believe a will is not valid, it’s important to seek legal advice as soon as possible.

3. What if someone dies without a will?

If a person passes away without a will (known as dying “intestate”), Ontario’s Succession Law Reform Act determines how the estate is divided. This may not reflect what the deceased would have wanted. In some cases, disputes can arise among surviving family members about how assets should be distributed.

4. What is a dependent support claim?

If someone was financially dependent on the deceased and is not adequately provided for in the will—or if there is no will—they may have the right to make a dependent support claim under Ontario law. This is common for spouses, children, or other family members who relied on the deceased for financial support.

5. What if I’m concerned about how the executor is handling the estate?

Executors have a legal duty to manage the estate fairly and in accordance with the law. If you believe the executor is mismanaging assets, withholding information, or acting in their own interest, you may have grounds to challenge their actions. A lawyer can help you assess the situation and take appropriate steps.

6. How long do I have to bring an estate claim in Ontario?

Time limits can vary depending on the type of claim, but in many cases, you must act within two (2) years from the date you knew or ought to have known about the issue. It’s important to speak with a lawyer early to ensure you don’t miss any deadlines. There are shorter limitation periods for married spouses who seek equalization, or anyone seeking dependant relief.

7. Will going to court tear my family apart?

Estate disputes are deeply personal, and emotions can run high. While some cases do proceed to court, many are resolved through negotiation or mediation. Our goal is to find a respectful and fair resolution while protecting your legal rights—and minimizing conflict whenever possible.

8. What are the differences between a situation where a spouse dies with or without a Will?

If a spouse dies with a Will, usually the estate is distributed according to the Will, subject to a few exceptions, such as failure to leave adequate support for a dependant. However, if there is no Will, this is one area of the law where there are important differences in terms of the rights of married and common-law spouses. If a married spouse is unhappy with what has been left them under a Will or the statutory rules of intestacy (those being the government stipulated distribution when there is no Will), that spouse can elect for equalization under the Family Law Act i.e. to take 50% of the combined net assets of the couple, but this election must be made within six months of the date of death (with limited discretion to extend the time). Intestacy rules under Part II of the Succession Law Reform Act apply only to married spouses, but they provide for a preferential share of the estate to be paid to the spouse, currently $350,000.00 plus a percentage of the rest of the estate. Both married and unmarried spouses may be able to claim for dependant’s relief under Part V of the Succession Law Reform Act, which awards can be enhanced beyond basic minimum financial support to a level which meets society’s expectations of what a prudent person would have left his or her surviving dependants, including a spouse. Such claims must be brought within six months of the appointment of an Estate Trustee for the estate (again, with limited discretion to extend the time). Likewise, the common law (or judge developed) law of unjust enrichment can apply whether or not there is a Will and whether or not spouses are married in situations where the survivor makes sacrifices in the relationship that benefitted the deceased spouse and the value of which is not adequately reflected in what the survivor has been left. Neither unjust enrichment nor dependant’s support claims are confined to claims by spouses, but can apply to other family relationships as well, although it is probably fair to say that caselaw is less well developed on non-spousal situations, leading to more uncertainty of results.

9. What happens if a Will has been lost?

If the original of the Will cannot be located, a copy, or even the Will reconstructed from other evidence, such as the notes of the drafting lawyer, can be put forward as a Will for probate, that is for the appointment of an Estate Trustee, on consent. If the matter is not on consent, the Will may still be proved where there is sufficient evidence that the testator never had possession of the original Will. Otherwise, there is a legal presumption that the testator destroyed the Will with the intention of revoking it.

10. Is it conclusive if the testator put the ownership of bank accounts, investments, or real estate, into the joint names of themselves and another family member so that that family member receives the asset by right of survivorship?

That is not necessarily the case. There can be a presumption that property, especially bank accounts, put into joint names, was done for convenience and the assets should revert to the estate, not the nominal co-owner. The circumstances require close investigation before one can reach a conclusion as to whether ownership passes to the survivor or to the estate.

11. What if what is found is a Will with a bunch of notes scrawled on it, or even just some notes written and signed by the testator? Can that constitute a valid Will?

The answer is this could possibly constitute a valid Will. The issue and the documents should be referred to a lawyer as soon as possible. A Will written wholly in the hand of the testator and signed by them can constitute what is known as a holograph Will, which is recognized in law. The more uncertain situation is when there is an existing Will with notes scrawled on it, it once was the law that that could never constitute a Will, at least not one including the directions given by the handwritten notes. In the last few years, the Courts have been given expanded power to forgive some irregularities in the form of the Will provided the Court is satisfied the document reflects the fixed and final testamentary intention of the person making the Will and providing the notes. Again, close investigation is required before any conclusion can be reached as to the prospects of such a document constituting a Will.

12. What about verbal statements of the testator as to what they want done with their assets? What if those statements have been recorded?

The law of Ontario does not currently recognize audio or videotaped Wills or additions to Wills (sometimes called a Codicil). Generally, verbal promises will not be enforced at all unless the promise is sufficiently confirmed by other evidence. In other words, someone showing up after a person dies who alleges they were promised the house, for example, will have a steep evidentiary burden to overcome before a Court will award that to them. The reason for this is the law recognizes that the testator is no longer around to give their version of what was said or agreed, so it is unfair to give something to someone based on their evidence alone. Again, early legal advice would benefit anyone making or resisting such a claim.

If you have a question that isn’t answered here, we invite you to contact us. The Gowland, Boriss team is here to listen, support, and guide you through the process—with clarity, compassion, and a strong commitment to your best interests.

705.743.7252 | 1.800.808.0189 | info@gowlandboriss.ca

Disclaimer:

Please note that nothing on this website should be considered legal advice and is being provided for general information purposes only. For legal advice, we encourage consultation with a lawyer to review your specific concerns and situation.