Notices of Objection 

The notice of objection to the issuance of a Certificate of Appointment of Estate Trustee is often considered the first step in a challenge to the validity of a will, or the right to a grant of probate or administration. However, the filing of a notice of objection does not in itself begin legal proceedings challenging a will – it simply advises that the objecting party objects to the issuing of a grant and requests that nothing be done to the estate without notice to the objector. 

Expiry of Notices of Objection

Rule 75.03(2) of the Rules of Civil Procedure outlines the expiry, withdrawal and removal of a notice of objection as follows: 

A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the court.

This wording of the Rule does not specify what must be done before the expiry of a notice of objection to pursue a will challenge and whether its expiry is prevented by a hearing for directions under Rule 75.06.  

In the three years after a notice of objection is filed, what is required to maintain the objection? Is it intended that the will challenge be resolved within the three-year window? 

Maintaining an Objection 

In the recent decision of Denny v Denny, 2022 ONSC 3267, the question of what needs to be done to maintain an objection was considered.  

In Denny, the executor named in the will asserted that the objector’s notices of objection (in respect of the estates of his two parents) should be removed because it had been more than three years since the notices of objection were filed. However, the parties obtained directions with respect to the will challenge on consent approximately a year and a half after the filing of the notice of objection. Some steps contemplated in the order giving directions did not occur, but the litigation had continued and remained unresolved following mediation.

Madam Justice Bell declined to make an order removing the notice of objection. Her Honour emphasized that the threshold of maintaining a notice of objection is low, and, since the court’s processes were engaged on the motion for directions, the will challenge would continue, unaffected by Rule 75.03(2).

This decision suggests that the three-year automatic expiry of a notice of objection will not apply where an order giving directions has been issued, preventing what would otherwise be a significant procedural problem on many estate litigation matters that continue beyond three years.  

Thank you for reading, and enjoy the rest of your day, 

Suzana Popovic-Montag and John Mikhail