While will challenges are not uncommon in estate litigation, those seeking to challenge a will must have a valid basis for doing so. Estate disputes often involve high levels of emotions, and conflicts among beneficiaries and other loved ones can occur for various reasons.

In the recent Ontario Court of Appeal decision of Bitaxis Estate v Bitaxis, the Court of Appeal provided further confirmation regarding the issue of whether there is an automatic right to challenge a will and referred to their previous decision in the case of Neuberger v. York.

Rule 75 Governs Will Challenges

Rule 75 of Ontario’s Rules of Civil Procedure governs the issue of challenging a will and provides that:

“75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.”

Grandson of the deceased requested the will be proven in solemn form

In the case of Neuberger v. York, the family patriarch died and left an estate worth over $100 million. He had primary and secondary wills, which were substantially similar. However, one difference resulted in one of the testator’s two daughters receiving about $13 million less than the other.

The testator’s two daughters, Edie and Myra, were appointed as co-trustees of the deceased’s estate. However, Edie challenged the validity of one of the wills. One of Edie’s sons, Adam, also challenged the validity of the same will. While many issues were at play in this complicated estate dispute, Adam’s claim focused on an automatic right to require the will be proven in solemn form. Therefore, Adam sought to have the will proven under Rule 75.01.

Motions judge finds grandson had no automatic right to have the will proven in solemn form

The motions judge in Neuberger v. York found that Adam had no automatic right to require that the will be proven because Rule 75.01 is discretionary. In dismissing the claim, the motions judge also indicated that the significant delay before the claim was brought was a factor in its dismissal.


Adam appealed the motions judge’s decision to the Ontario Court of Appeal, submitting that the motions judge had erred by failing to recognize his automatic right to seek proof in solemn form of the challenged will.

The Ontario Court of Appeal in Neuberger agreed with the motions judge

The Ontario Court of Appeal addressed Adam’s appeal as a preliminary issue in determining the appeal. First, the Court reviewed the relevant Rules of Civil Procedure, finding that rule 75.01 empowers an estate trustee or anyone else appearing to have a financial interest in an estate to put forward an application under Rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased to be “proved in such manner as the court directs.”

Adam sought to have the will proven in solemn form, and the Court considered what that means. Proving a will in solemn form requires that it be proven in open court, upon notice to all parties having a financial interest in the estate, that:

  1. The will was duly executed;
  2. The testator had testamentary capacity; and
  3. That the testator had knowledge and approval of the contents of the will.


The onus to prove the above would be on the person propounding the will. However, this person is aided by a rebuttable presumption. Once the person propounding the will has proven that the will was executed with the proper formalities, there is then a rebuttable presumption of validity which shifts the evidentiary burden to the person challenging the will. This burden could be satisfied, for instance, by introducing evidence of “suspicious circumstances” regarding things such as testamentary capacity. If the person challenging the will is alleging that there was undue influence in the preparation of the will, they bear the onus of establishing that it existed.

Court of Appeal finds that proof in solemn form is not an automatic requirement

The Ontario Court of Appeal accepted the “general principle” that before probate, a person with a financial interest in the estate can request formal proof of the testamentary instrument. However, it does not follow that the person has a right to proof in solemn form. The Court had two reasons for this:

  1. The wording of Rule 75.01 does not include the phrase “in solemn form,” but the will may be “proved in such manner as the court directs.” Rule 75.01 further provides that the interested person must bring their application under Rule 75.06. Rule 75.06 provides that on an application or motion, a court may make a variety of orders, including “such … procedures as are just.” Rule 75.06 is permissive and not mandatory; it provides the court with discretion to direct, but it does not mandate the court to do so. If Rule 75.06 was mandatory, it would use “shall” or “must,” not “may,” and
  2. An automatic right such as that claimed by Adam would be inconsistent with the case law on Rule 75.

Therefore, the interested party seeking proof of the will in solemn form must bring forward some evidence that would call into question the will’s validity. If they do not, the application or motion should be dismissed. If they do, the court will often order the will be proved, as appropriate in the circumstances, using its powers under Rule 75.06.

Great-nephew of deceased alleges lack of testamentary capacity

In the recent case of Bitaxis Estate v. Bitaxis, George, the great-nephew of the deceased, was a beneficiary of the estate and objected to the issuance of the Certificate of Appointment of Estate Trustee. He alleged a lack of testamentary capacity and suspicious circumstances.

George relied on his own affidavit evidence about the deceased, including her hospital stays, her statements to him, and his observations of her. He also relied on an affidavit from a relative of the deceased by marriage, who swore to her observations of the deceased, including complaints about her medication and forgetfulness.

Court of Appeal confirms that evidence must be adduced that calls into question the validity of the will before proof or disclosure will be directed

The motions judge in this case found that George did not provide sufficient evidence which could support a finding of testamentary capacity concern. George appealed the motion judge’s decision to the Ontario Court of Appeal.

The Ontario Court of Appeal agreed with the motions judge that an interested person must adduce minimal evidence that the will’s validity should be questioned. As in Neuberger v. York, the Court confirmed that there is no automatic right to have the will proven or to have access to additional disclosure or documentary discovery. The Court of Appeal subsequently dismissed the appeal.

Contact the Estate Lawyers at Campbells LLP in Oakville for Skilled Representation in Estate Disputes

At Campbells LLP, our exceptional estate planning and litigation lawyers are ready to assist you in any of your estate-related matters. We understand that sometimes, despite having a sound estate plan in place, disagreements can arise during the estate administration process. These disputes can be complex, which is why we take a compassionate approach to the issues at hand. Our estates team works closely with clients and help navigate them through difficult issues. If you require assistance with estate planning or are involved in an estate dispute, contact our office online or call us at (905) 828-2247 to speak with a member of our estate team and learn how we can assist you.