When a will is challenged in Ontario, its validity is usually defended by the estate trustee, so long as the challenger meets the minimal evidentiary threshold. However, depending on the case, an estate trustee may decline to defend a will, or may be removed by the court before the will challenge is even heard. Under such circumstances, where there is no one to defend the will, should the will fail if the will challenger is able to establish the existence of suspicious circumstances?
A new decision from the British Columbia Supreme Court – Cornies v. Cornies, 2026 BCSC 1563 – addresses this question, holding that where suspicious circumstances displace the presumption of validity and there is no propounder to defend a will, the court may declare that instrument invalid. It is unclear, however, whether an Ontario court would reach the same conclusion.
Background
The will at issue in Cornies was executed when the deceased was estranged from his sons. It included bequests to charitable institutions and appointed the deceased’s lawyer who had drafted the will as executor and trustee. The lawyer was also a beneficiary in an accompanying codicil which gifted the deceased’s Mustang to him.
Before the deceased died, however, his sons claimed that they had reconciled with him, and that the deceased wanted to update his will in order to leave his estate to them. One of the sons contacted the lawyer in November of 2020 at the deceased’s request, advising that the deceased wanted to redo his will and that the matter was urgent because of his health, but the lawyer did not respond. A few months later, the son contacted the lawyer again, which prompted the lawyer to email the deceased to ask whether he wished to make changes to his estate planning documents. By that time, though, the deceased was too ill to make a new will. He subsequently died without having changed his estate plan.
Following their father’s death, the sons challenged his final will and codicil. Before the will challenge was heard, the lawyer was removed by the court as executor due to a conflict of interest. The BC Supreme Court recognized that he might have to give evidence as a witness during the litigation and that propounding the will would also require him to defend the work that he had performed as the deceased’s solicitor. The decision to remove the lawyer as executor was also upheld on appeal, as previously noted on our blog: see Procedural Fairness in Estate Litigation.
Challenging a Will With No Propounder
After the lawyer was removed as executor, no one stepped in to defend the deceased’s final will and codicil. None of the other beneficiaries took a position on the validity of the deceased’s final testamentary instruments, nor did the deceased’s brother, who replaced the lawyer as executor and trustee of the estate.
At a summary trial, the sons established a number of suspicious circumstances surrounding the will. For example, it was alleged in the notice of application that the lawyer failed to suggest that the deceased obtain independent legal advice before executing the final will and codicil, and the court accepted that the failure to obtain such advice constituted a suspicious circumstance.
Due to the establishment of suspicious circumstances, the presumption of validity was rebutted, shifting the burden of proof to the propounder of the will to dispel those circumstances. In the absence of a propounder, the court had to determine whether the will failed once suspicious circumstances were established. Justice Walkem went on to conclude that the will did fall – or more specifically, that on the facts before her, the absence of a propounder and unrebutted suspicious circumstances resulted in the will being declared invalid.
There was an evidentiary void with respect to the deceased’s testamentary capacity and knowledge and approval of his final will and codicil, since no one was defending the will challenge. Under these circumstances, without a propounder to bear the shifting onus of proof and prove the will’s validity, Justice Walkem held that the court was left with no option but to declare the will invalid.
Justice Walkem also noted that, once suspicious circumstances were established, it was unnecessary to determine whether the events constituting the suspicious circumstances had actually happened:
“In my view, it is not necessary to find, on a balance of probabilities, that the events which constitute suspicious circumstances in fact occurred. After a finding of suspicious circumstances, the presumption of validity no longer applies. In the absence of evidence from a propounder about the will-maker’s testamentary capacity, knowledge and approval, the court is left with no option but to declare the will invalid.”
Would Suspicious Circumstances Alone Be Sufficient to Declare a Will Invalid in Ontario?
While Justice Walkem considered case law from Ontario in deciding Cornies, it is not clear that an Ontario court would take the same approach if confronted with a propounder-less will under similar circumstances.
Justice Walkem took note of the Superior Court’s decision in Francella v. Tokarz, 2022 ONSC 7066, a case where the estate trustee renounced her appointment on the basis that she believed the will to be invalid. The Court in Francella acknowledged the rebuttable presumption of validity but ultimately did not apply it; Justice Walkem speculated that the court may have taken this approach because there was no propounder to dispel the suspicious circumstances. However, this point was not expressly addressed in Francella.
A salient point that does not appear to have been considered in Cornies is whether the probate court’s inquisitorial function ought to have been utilized. Ontario authorities emphasize the court’s inquisitorial role, and caution against pronouncing against a will without sufficient evidence, as demonstrated by Justice Cullity’s decision in Otis v. Otis, 2004 CanLII 311 (ON SC), a case where the propounder of the will failed to attend the trial to determine the will’s validity. Notwithstanding the absence of the propounder of the will, Justice Cullity affirmed that the function and obligation of the probate court was “to ascertain, and pronounce, what is the last will or what are the testamentary documents constituting the last will of the testator, which is or are entitled to be admitted to probate.”
Generally speaking, Otis suggests that a court should not pass over an apparently valid testamentary instrument without actual evidence of its invalidity. On this point, the court cited the 17th edition of Williams, Mortimer and Sunnocks’ text, Executors, Administrators and Probate, for the proposition that where a court is asked to pronounce against what purports to be the deceased’s last will, evidence must be called which establishes the alleged ground of invalidity:
“It is the duty of the probate court to give effect if it can to the wishes of the testator as expressed in testamentary documents and it should not, therefore, pronounce against what it knows to be the last will in date without making an inquiry as to its validity. A court cannot pronounce against a will by consent and therefore a fortiori cannot pronounce against a will in a case of default without sufficient evidence. Although it has been suggested that where there is a genuine belief in the invalidity of a later will and the action has become undefended the court may pronounce against the will in solemn form without further evidence, this suggestion, based on an extension of the principle in Morton v. Thorpe [(1863), Sw. & Tr. 179] is, it is submitted, wrong.”
This principle appears, on its face, to be in tension with Justice Walkem’s reasoning in Cornies – that a will without a propounder will fail once suspicious circumstances are established, even without a finding on the balance of probabilities that the events constituting those suspicious circumstances actually occurred.
Justice Cullity’s decision in Otis, in comparison, notes that before pronouncing an apparently valid testamentary instrument invalid, probate courts have an independent responsibility to determine the deceased’s true last will and cannot declare a will invalid without sufficient evidence of its invalidity. However, it merits noting that Justice Cullity did not address how the court’s inquisitorial function interfaces with the shifting burden of proof triggered by suspicious circumstances, and that this precise point does not appear to have been addressed in subsequent case law.
Nevertheless, should a situation like that in Cornies arise in Ontario, it seems probable that the court would at least consider its inquisitorial jurisdiction, particularly given that the Ontario Court of Appeal affirmed Justice Cullity’s observations about the court’s inquisitorial jurisdiction in Neuberger v York, 2016 ONCA 191. While the Court of Appeal was not dealing with a propounder-less will in that case, it confirmed that the probate “court’s role is not simply to adjudicate upon a dispute between parties” but rather is to “ascertain and pronounce what documents constitute the testator’s last will and are entitled to be admitted to probate,” and that “[t]he court also has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions.”
At the end of the day, while an Ontario court faced with circumstances like those in Cornies would likely consider its inquisitorial function, it remains an open question whether that function would prevent a propounder-less will from failing based on the establishment of suspicious circumstances alone, without further evidence establishing the will’s invalidity.
Have a great rest of your week,
Suzana.