Can I Contest a Will — and Should I?

Who Can Contest a Will — Standing Comes First

Only people with a financial interest in the outcome can contest a will: beneficiaries under the challenged will or an earlier one, heirs who would inherit on intestacy if the will fails, and — through a different route — spouses and dependants claiming support. In Canada, intestacy rules define the heir class; in Ontario, for example, a surviving spouse takes a preferential share of the first $350,000 of an intestate estate before splitting the balance with children, which frames exactly what a successful challenge would be worth to each claimant. In the US, standing rules are similar: an 'interested person' under state probate codes must show they would take more if the will were set aside.

Standing analysis also dictates strategy. A disinherited child who was named in a prior will fights for validity to revive that prior will; a spouse left an inadequate gift often does better claiming support or a statutory elective share (in most US states, roughly one-third of the estate) than attacking validity at all. Before any money is spent on the merits, a lawyer will ask the two questions this tool asks first: what do you get if you win, and which route gets you there.

The Four Validity Grounds and the Dependant Support Alternative

Wills are set aside on four main grounds. Lack of testamentary capacity: the will-maker did not understand the act of making a will, their property, or the claims of those close to them — proved mostly through medical records and the drafting lawyer's notes. Undue influence: coercion that overbore the will-maker's free choice, not mere persuasion. Improper execution: missing signatures or witnesses, though several jurisdictions now have curative provisions that can save defective documents. And revocation: a valid later will displaces the one being probated. Suspicious circumstances — a deathbed change favouring a caregiver, isolation from family, secrecy — do not win alone but can force the person defending the will to prove capacity and knowledge-and-approval.

Distinct from all of these is the dependant support claim, which concedes the will may be valid but says it fails to provide adequately for someone the deceased supported. In Ontario this runs under Part V of the Succession Law Reform Act with a 6-month deadline from the grant of probate; most US states protect spouses through elective share statutes and family allowances rather than open-ended support claims. Because the tests, evidence, and deadlines differ completely from a validity challenge, choosing the right route — or pleading both — is the single most consequential early decision.

Deadlines, Objections, and the Costs Risk

Estate deadlines are among the shortest in civil law. Ontario dependant relief claims must generally be filed within 6 months of probate; some US states give as little as 90 days from notice of probate to contest a will, and few give more than a year. The cheapest protective step is a notice of objection (called a caveat in many jurisdictions) filed with the probate court — it prevents a grant from issuing, or flags the dispute, while investigation proceeds. If distribution has already started, injunctions and preservation orders become necessary, and recovery from beneficiaries who have spent their inheritance may be impossible.

The costs risk is real and frequently misunderstood. The old assumption that the estate pays everyone's legal fees is gone: modern Canadian and US courts generally apply loser-pays principles to estate litigation, reserving estate-funded costs for cases genuinely caused by the testator's own conduct or reasonable investigation of suspicious circumstances. Contested estate cases routinely cost each side tens of thousands of dollars through trial, which is why the majority settle at mediation — mandatory in some jurisdictions — and why a written merits-and-costs opinion should precede any statement of claim.

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