It can often be the case that an interested person to a will, such as a disappointed beneficiary, may seek to have a will proved in solemn form if they believe the final will of the deceased not to be valid.

In Ontario, proving a will in solemn form is a legal process that involves presenting a will to the court so as to establish it as the valid last will of the deceased. In order to accomplish this, an estate trustee, or any person appearing to have a financial interest in an estate, may make an application to have a will “proved in such manner as the court directs” (Rule 75.01 of the Rules of Civil Procedure).

To do this, the person who is proving the will (called the “propounder”) must present evidence in open court, on notice to all interested persons, to demonstrate it meets certain legal requirements:

The first requirement is that the propounder prove the will was properly executed.

The second requirement is that the propounder prove the deceased had the requisite testamentary capacity to make a will. This may involve presenting evidence, such as medical records or testimony from doctors or other experts who can attest to the deceased’s mental state at the time the will was made.

The third requirement is that the propounder prove the testator had knowledge and approval of the contents of the will. This can be done by presenting the drafting solicitor’s notes from when the will was drafted and executed.

The burden of proof lays with the propounder to satisfy these requirements with the court. (Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876).

If the court is satisfied that these requirements have been met, the will is deemed valid, and the estate can be administered according to the terms of the will. On the other hand, failure to prove a will in solemn form can result in the will being declared invalid.

It is important to note in Neuberger Estate v. York it was held that a person who has an interest in a will does not automatically have a right to require its proof in solemn form: the court has the discretion over whether “to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved.”

Thank you for reading and have a great day.
Suzana Popovic-Montag and Geoffrey Sculthorpe