A decision this week out of the Ontario Court of Appeal emphasizes the need for standing in order to be allowed to proceed with a will challenge.

In Moses v. Moses, 2021 ONCA 662 (CanLII), a son challenged the validity of his father’s 2019 Will. The son was not provided for in the 2019 Will, and the son challenged its validity based on undue influence. However, the father had a prior Will from 1996, which also did not provide for the son. The application judge dismissed the will challenge on the basis that the son lacked standing. Even if the 2019 Will was invalid, the son would not take under the estate due to the 1996 Will.”

The son argued that the question of the validity of the 1996 Will “would be determined at a later date, if necessary”. The application judge and the Court of Appeal disagreed. The Court of Appeal stated that “there was an onus on the [son] to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will.”

The son also argued that he had a claim against the estate for proprietary estoppel, and that because of this, s. 23 of the Estates Act gave him standing to challenge the Wills. Section 23 provides:

Citation of persons interested

23 Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.

The Court of Appeal rejected this argument, accepting the application judge’s finding that the outcome of the son’s claim against the estate did not in any way depend on the validity of the 2019 Will, and thus s. 23 did not give the son standing to challenge the 2019 Will. Further, s. 23 is discretionary, and the Court of Appeal found no error in the application judge’s exercise of discretion.

When considering a will challenge, one must consider standing. Where will I be if I am successful in setting aside the will? If I can be successful on the will challenge but still not in the chips, I may not be allowed to proceed.

Thanks for reading.

Paul Trudelle