A person with a financial interest in an Ontario estate can ask the court to require a will to be proved in solemn form, but cannot demand it. In Neuberger v. York, 2016 ONCA 191, the Court of Appeal held that rules 75.01 and 75.06 must be read together, that rule 75.06 is permissive, and that the court therefore has a discretion both over whether a testamentary instrument is proved and over the manner of proof. Before that discretion is exercised, the person asking must meet some minimal evidentiary threshold: they must adduce, or point to, some evidence which, if accepted, would call into question the validity of the will being propounded. This article is about that procedural gateway and about suspicious circumstances as a doctrine. The substantive grounds themselves, undue influence and testamentary capacity, are dealt with separately.
What Does "Proved in Solemn Form" Mean?
Probate in common form is the ordinary process. The estate trustee applies, files the will and the supporting affidavits, and the registrar issues the certificate. Nobody gives evidence in court and nobody is cross-examined.
Proof in solemn form is the contested version. The person propounding the will proves it in a proceeding, on evidence, with the parties who oppose it participating. It is slower, considerably more expensive, and it produces a determination that binds those who took part.
The question Neuberger answered is who gets to insist on that. An interested person can request proof in solemn form. They cannot compel it. Without a threshold, as the Court of Appeal put it, estates would be exposed to needless expense and litigation, and in the case of a small estate that exposure could deplete it entirely. It would also be unfair to require an estate trustee to defend a will simply because a disappointed relative asked.
What Is the Minimal Evidentiary Threshold?
The formulation is precise and worth quoting accurately. The applicant must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument being propounded.
It works as a two-step exchange:
The challenger puts forward evidence that, taken at its highest, would raise a real question about validity.
The propounder answers it. If the answer succeeds, the challenge is dismissed. If it does not, the court gives directions under rule 75.06(3) and the matter proceeds.
It is not summary judgment. The Court of Appeal was explicit that this process is something less than a summary judgment motion. The court is not resolving the merits; it is deciding whether there is enough to justify putting the estate through the process.
In Seepa v. Seepa, 2017 ONSC 5368, Justice Myers called for a culture shift away from boilerplate consent orders giving directions, which had been granted routinely. The court assesses the quality of the allegations rather than accepting that a challenge has been asserted. Later decisions have continued to work through what kind of evidence actually clears the bar.
What generally does not clear it: dissatisfaction with the division, a belief that a parent would not have done this, an assertion that a beneficiary was "always after the money," or a diagnosis without more. What can clear it: a sharp and unexplained departure from settled testamentary intentions, evidence about the circumstances in which the will was prepared, the drafting lawyer's file, contemporaneous medical or care records, and evidence of isolation or control around the time of execution.
What Are Suspicious Circumstances?
Suspicious circumstances are an evidentiary doctrine, not a separate ground of challenge. They operate on the burden of proof.
The framework comes from Vout v. Hay, [1995] 2 S.C.R. 876. The propounder of a will must prove due execution, testamentary capacity, and knowledge and approval. A presumption of validity assists the propounder where the will was duly executed with the required formalities after being read over to a testator who appeared to understand it.
Suspicious circumstances displace that presumption. They cast an evidentiary burden on the challenger; where the challenger meets it, the legal burden reverts to the propounder on knowledge and approval, and on capacity where the circumstances reflect on capacity.
| Category | What it covers |
|---|---|
| Circumstances surrounding the preparation of the will | Who arranged it, who instructed the lawyer, who was present, how quickly it was done |
| Circumstances calling the testator's capacity into question | Cognitive decline, medication, delusion, the complexity of the instrument against the testator's understanding |
| Circumstances tending to show the testator's free will was overborne | Acts of coercion or fraud |
Two limits matter. The extent of proof required is proportionate to the gravity of the suspicion, so a well-grounded suspicion does not by itself discharge the propounder's burden. And Barry v. Butlin holds that where a person who prepares a will takes a benefit under it, that circumstance ought generally to excite the suspicion of the court.
Undue influence sits outside this mechanism entirely. The onus of proving testamentary undue influence rests squarely on the person attacking the will and never shifts. There is no presumption of undue influence in the testamentary context in Ontario. Conflating the two is the most common analytical error in this area, and it leads challengers to assume a presumption will do work that it will not.
How Does a Challenge Actually Proceed?
Establish the interest. The person must appear to have a financial interest in the estate.
Consider a notice of objection where no certificate has issued, which prevents one from being issued while the objection stands.
Bring the application or motion for directions under rule 75.06.
Put the evidence forward that meets the minimal evidentiary threshold.
Expect the propounder to answer it, and expect the court to weigh whether that answer succeeds.
If the threshold is met, the court gives directions: who the parties are, what the issues are, what documentary and oral discovery will occur, and whether the matter proceeds by trial of an issue.
If it is not met, the challenge is dismissed and costs are addressed.
Our guide to estate disputes in Ontario covers the broader landscape of contested estates.
Where This Goes Wrong
Filing first and finding evidence later. The threshold is applied on the material actually before the court. A challenger who assumes discovery will produce the evidence has the sequence backwards, because directions come after the threshold is met, not before.
Treating a dementia diagnosis as the case. A diagnosis is not equivalent to testamentary incapacity. Capacity is a legal concept rather than a medical one, it is assessed at the moment the will was made, and it fluctuates. Courts have criticised reliance on bedside cognitive screening scores as a blunt tool with limited ability to detect the executive function deficits common in Alzheimer's disease. Medical evidence matters, but it has to be directed at the right question at the right moment.
Treating disinheritance as evidence of incapacity. The capacity test requires the ability to comprehend the claims of those who might expect to benefit, not to give effect to them. A testator may understand a claim perfectly and decline it.
Assuming suspicious circumstances prove undue influence. They do not. They shift a burden on knowledge and approval, and on capacity where relevant. Undue influence requires the challenger to prove coercion, and the threshold there is high.
Underestimating the costs exposure. Costs in estate litigation follow the ordinary civil rules unless a public policy consideration applies. A challenge with reasonable grounds behind it may be funded from the estate even if it fails; one without them may not be, and the challenger can end up paying. Our guide to common probate mistakes covers several of the errors that lead here.
Forgetting what happens if the will falls. If the challenged will is set aside and there is no earlier valid will, the estate is distributed on an intestacy, and our guide to dying without a will in Ontario sets out that distribution. It does not always favour the challenger, and working out the intestate outcome before starting is a basic and frequently skipped step.
If you are considering a challenge, or defending one, you can book a free call to assess whether the evidence realistically meets the threshold.
Frequently Asked Questions
Can I force an executor to prove a will in solemn form in Ontario?
No. In Neuberger v. York, 2016 ONCA 191, the Court of Appeal held that an interested person may request proof in solemn form but cannot require it. Rules 75.01 and 75.06 read together give the court a discretion over whether a testamentary instrument is proved and over the manner of proof, and before exercising it the court requires the person asking to meet a minimal evidentiary threshold.
What is the minimal evidentiary threshold?
The applicant must adduce, or point to, some evidence which, if accepted, would call into question the validity of the will being propounded. The propounder then has an opportunity to answer that evidence. If the answer succeeds the challenge is dismissed; if it does not, the court gives directions under rule 75.06(3). The Court of Appeal was clear that this process is not a summary judgment motion but something less.
What are suspicious circumstances in a will challenge?
They are circumstances that displace the presumption of validity that would otherwise assist the person propounding a will. Vout v. Hay identifies three categories: circumstances surrounding the preparation of the will, circumstances calling the testator's capacity into question, and circumstances tending to show that the testator's free will was overborne by coercion or fraud. Establishing them shifts the legal burden back to the propounder on knowledge and approval, and on capacity where the circumstances reflect on it.
Do suspicious circumstances prove undue influence?
No, and this is the distinction that causes the most difficulty. Testamentary undue influence sits outside the shifting mechanism entirely: the onus rests on the person attacking the will, on a balance of probabilities, and it never shifts. There is no presumption of undue influence in the testamentary context in Ontario, which is the opposite of the position for lifetime gifts.
Does a will challenge stop probate from being granted?
A notice of objection filed under the Rule 75 procedure prevents a certificate from being issued while it stands, which is a different mechanism from asking for proof in solemn form. Where a certificate has already issued, the challenge proceeds against a will that has been admitted to probate, and the procedural posture and the limitation analysis both change.
What happens if the will is set aside?
The estate is governed by whatever valid testamentary instrument remains. If there is an earlier will that was not effectively revoked, it may govern, though an earlier will that was validly revoked does not automatically revive simply because a later one has been set aside. If no valid will remains, the estate is distributed under the intestacy rules, which may produce a result the challenger did not intend.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.