When can you challenge a will? This was the issue raised in the recent case, Moses v Moses. Aby Moses operated a family hardware business (‘the Business’) for many years on property (‘the Property’) owned by a private corporation (‘the Corporation’). His son, Reuben began working for him in the Business in 1988 and assumed managerial responsibilities in 1996 when his father was no longer able to carry out those duties. Aby was married to Rosy. Abby was the majority shareholder of the Business, but Reuben and his sister, Rachel, also held common shares in it. Aby and Rosy each held a 50% interest in the Corporation.
Aby had made a will in 1996 under which he left his entire estate to Rosy, with a gift over of half the residue to each of Rachel and Reuben if Rosy predeceased him or failed to survive him by 30 days. Aby died in 2019, having made duplicate wills in that year three months before he died. Under the primary will he left his primary estate (which did not include his interest in the Business or the Corporation) to Rosy with a gift over to Rachel and her children if Rosy predeceased him or failed to survive him by 30 days. He left nothing to Reuben or Reuben’s children under the primary will. Aby left his secondary estate, including his interest in the Business and the Corporation to Rosy, with a gift over to Rachel if Rosy predeceased him of failed to survive him by 30 days, however, in that case Reuben would have opportunity to purchase Aby’s shares in the Business for a specified price.
Reuben brought a separate action in 2020 in which he claimed an interest in the Business and its assets and a 50% interest in the Property under the doctrine of proprietary estoppel. Then he brought this application, seeking a declaration that the 2019 will was invalid. Rosy and Rachel moved to dismiss the application on the ground that Reuben lacked standing to bring it. They produced the original 1996 will and submitted an affidavit by one of the witnesses to it that tended to prove its due execution. In it the witness also identified the signature of the other witness, the now deceased lawyer who drafted the will and who was her employer.
Reuben provided evidence that Aby repeatedly promised that he would inherit the Business and Aby’s interest in the Property. He alleged that Rosy and Rachel exerted undue influence over Aby and forced him to sign the 2019 will.
Rosy and Rachel argued that Reuben failed to adduce sufficient evidence to show that he had an interest in Aby’s estate because, even if the 2019 will were found invalid, the 1996 will would apply and it left the entire estate to Rosy.
This brought Rule 75.06(1) of the Rules of Civil Procedure into play, which reads:
Any person who appears to have a financial interest in an estate may apply for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.
At first instance, Cavanagh J. considered Smith v Vance, which discussed the concept of ‘financial interest’ and held that ‘claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party’. The evidence does not have to be conclusive at that stage, but ‘must be capable of supporting an inference that the claim is one that should be heard’. If the evidence can support such an interest, the claimant is entitled to standing. In that case the Divisional Court held that the appellants had met the threshold test by evidence capable of supporting an inference that they had a financial interest in the estate.
His Honour also considered Adams Estate v Wilson, in which the Saskatchewan Court of Appeal held that the concept of standing implies that a claimant has something to gain from attacking the will. It held in that case that if the will were found invalid, that would result in an intestacy, and under it the applicant would receive nothing. Thus, he lacked standing.
Justice Cavanagh found that Reuben did not cross-examine his sister or the witness to the 1996 will on their affidavits and did not provide affidavit evidence that called into question the evidence on which the moving parties relied. Nor did he present evidence capable of supporting an inference that the 1996 will was invalid. His Honour was satisfied that the moving parties had established that if the 2019 will were invalid, the 1996 will should be presumed invalid. Accordingly, he held that Reuben did not have standing to bring the application under rule 75.06(1).
Reuben also argued that he had independent standing under s. 23 of the Estates Act to bring the application. It provides:
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 the rules and the discretion of the court.
Reuben argued that he had a claim to an interest in Aby’s estate because of his claims in the civil action. However, the court held that s. 23 did not apply, since no proceeding had been brought to prove the 2019 will in solemn form, no proceeding was brought to revoke probate of that will, no application was made for probate, and no other contentious matter in which the validity of the will was disputed had been brought. The only application before the court was Reuben’s challenge to the will and it foundered on his lack of standing. Thus, his Honour held that Reuben’s claim to an interest in the property of Aby’s estate did not give him standing under s. 23 to challenge the 2019 will if he did not otherwise have standing.
Reuben appealed. However, the Court of Appeal found no error in Justice Cavanagh’s reasons. It held that in the circumstances there was an onus on Reuben to adduce some evidence to call into question the evidence adduced by the respondents to establish the validity of the 1996 will, which he failed to do. The court also agreed with Justice Cavanagh’s reasons regarding s. 23 of the Estates Act. It noted that the jurisdiction under that section is discretionary, and Reuben had failed to identify any error by Justice Cavanagh in the exercise of his discretion. Thus, the court dismissed the appeal.
 2021 ONSC 587, 64 ETR 4th 246, affirmed 2021 ONCA 662.
 RRO 1990, Reg 194.
 1997 CarswellOnt 1554 (Div Ct).
 Ibid., paras. 10-11.
 2020 SKCA 38.
 RSO 1990, c. E.21.
 As a matter of interest, in Smith v Vance, footnote 3, supra, para 9, the Divisional Court interpreted the word ‘pretending’ in s. 23 as meaning ‘alleging or laying a claim to an interest in law’, and held that it does not mean ‘claiming or professing falsely or deceptively’.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.