When an application for a certificate of appointment of estate trustee is filed, any party with a financial interest in the deceased person’s estate may object to the application. However, there may be uncertainty as to the circumstances under which a notice of objection is merited. While rule 75.03 of the Rules of Civil Procedure addresses who may file an objection, which form to use, when the objection is to be filed, and where to file it – the “who”, “what”, “where” and “when” of objecting – the Rules do not address the “why”, being the grounds for filing an objection.[1] Given the Rules’ silence on this point, this article examines a number of circumstances which may necessitate filing a notice of objection, including:
- will challenges;
- when a will admitted for probate contains drafting errors;
- when the will has been revoked; and
- opposition to the applicant being appointed as estate trustee.[2]
It is important to understand the circumstances under which probate should be opposed since the court may refuse to grant relief at a later time if a notice of objection is not filed in response to an application for a certificate of appointment or is filed after the estate administration has begun.[3]
A. Objecting in Order to Challenge the Will
A notice of objection must be filed in order to challenge the validity of a will, recognizing that “a grant of probate is conclusive regarding … the validity and contents of the will”.[4] The validity of a will can be challenged on a variety of bases, including lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, or because the will was not executed in accordance with statutory requirements.[5] However, as explained below, a notice of objection can also be filed for other reasons, and therefore should not always be automatically equated with “disputing the will”.[6]
While technically “[t]here is no legal or moral obligation on any beneficiary to say that he or she is not going to challenge the Will before the Estate Trustees can move on the administration of the Estate”, the court may refuse to permit a beneficiary to commence a will challenge after collecting estate assets under the impugned will.[7] As noted by Justice Greer in Leibel v Leibel, the court may not permit a will challenge to proceed under such circumstances, depending on the facts of the case, in light of the equitable doctrines of estoppel by convention and estoppel by representation.[8] If a beneficiary acts in a way that demonstrates acceptance of the terms of the will and induces the estate trustee to administer the estate, that party may not be allowed to subsequently resile from their acceptance of the validity of the will.[9]
Depending on the facts of the case, these doctrines could also apply to other parties with a financial interest in the deceased’s estate. For example, if a party indicates that there may be an issue with respect to the validity of the will, but then fails to take legal steps to go forward with a challenge in a timely way, the court may not permit a challenge to proceed.
B. Objecting Because the Will Submitted for Probate Contains Drafting Errors
A notice of objection may also be filed if the testator’s will contains a mistake that could ground a claim for negligence against the will drafter. It is inappropriate to stand by when a certificate of appointment of estate trustee is sought and to later commence a negligence action against the will drafter – such action represents a collateral attack on a certificate of appointment of estate trustee, since the negligence claim “directly contradicts the court’s pronouncement regarding the will’s validity”.[10] Accordingly, under these circumstances, probate can be opposed on the basis of mistake and lack of knowledge and approval, and the applicant should be required to prove that the testator knew and understood the contents of the will and that “the will was not affected by mistake”.[11]
Procedurally, it may also be appropriate for the objector to apply to rectify the will rather than advance a negligence action.[12]
C. Objecting to Probate of a Revoked Testamentary Instrument
When an application for a certificate of appointment of estate trustee is submitted with a will or other testamentary instrument,[13] the deceased’s final will should be included in the materials, recognizing that a more recent will revokes a prior will to the extent that the provisions included in the instruments are inconsistent.[14] The onus is on the applicant to establish that the will submitted has not been revoked when applying for probate.[15] Accordingly, if the applicant seeks to probate an older will or document, the application ought to be opposed so long as the more recent testamentary instrument appears to be valid.[16]
Of course, if a more recent testamentary instrument is not found until after a certificate of appointment of estate trustee in respect of a prior will has been obtained, a party with an interest in the estate should not be prevented from opposing probate. However, if a party delays before challenging the older will, the court may be reluctant to allow the challenge to proceed, depending on the circumstances.
D. Objecting to the Appointment of the Applicant as Estate Trustee
Lastly, a notice of objection may be filed if the objector wishes to challenge the right of the applicant to be appointed as estate trustee,[17] as a grant of probate is conclusive of this appointment.[18] For example, a notice of objection may be merited if the person applying for a certificate of appointment:
- is in a conflict of interest with the estate;[19]
- is believed to lack capacity and is incapable of managing their own affairs;[20]
- previously renounced the right to administer the estate;[21]
- has engaged in past conduct which makes their appointment as estate trustee inappropriate;[22] or
- is accused of exercising undue influence on the deceased.[23]
Filing a notice of objection before the applicant has been appointed as estate trustee is advisable, given how difficult it can be to have an estate trustee removed after an estate administration has begun. While the court has the power to remove an estate trustee after they have been appointed,[24] a removal application usually will not be granted unless the estate trustee is “likely to prevent the trust from being properly executed” and such action is necessary to protect the welfare of the beneficiaries.[25]
Conclusion
If a person with a financial interest in an estate takes issue with an application for a certificate of appointment of estate trustee, either because of a problem with the will, or concern pertaining to the applicant being appointed as estate trustee, it is advisable to file a notice of objection. If an objection is not filed in a timely manner, the would-be objector may not be able to pursue relief at a later time, or in the case of removing the estate trustee, may have to meet a different standard to obtain relief. Collateral attacks on court orders pertaining to probate are to be discouraged.
[1] RRO 1990, Reg 194, r 75.03(1), Form 75.1 [Rules].
[2] Please note that this list is not exhaustive, and that it may also be appropriate to file a notice of objection under other circumstances. For example, objecting to a grant of probate may be merited if the objector is simply “concerned that the estate may be administered contrary to his or her interest”: see Albert H Oosterhoff et al, Oosterhoff on Wills, 9th ed (Toronto: Thomson Reuters, 2021) at 47.
[3] That said, the Rules do not expressly bar the court from revoking a certificate of appointment of estate trustee after probate has been granted: see the Rules, supra note 1, r 75.04. A certificate of appointment of estate trustee may be revoked if “(a) the certificate was issued in error or as a result of a fraud on the court; (b) the appointment is no longer effective; or (c) the certificate should be revoked for any other reason.”
[4] Cooke Family Trust et al v Dioguardi et al, 2025 ONSC 370 at para 21 [Cooke].
[5] To learn more about challenging a will on such grounds, see Chapter 2 of Ian M Hull and Suzana Popovic-Montag, Macdonnell, Sheard and Hull on Probate Practice, 6th ed (Toronto: Thomson Reuters, 2023) [Probate Practice].
[6] Probate Practice, ibid at §18:2. The text notes that “if the party filing the notice of objection finds that his or her interests do not conflict with those of the applicant, he or she may support the latter's claim”.
[7] Leibel v Leibel, 2014 ONSC 4516 at para 41.
[8] Ibid at para 54.
[9] Ibid at paras 62-64.
[10] Cooke, supra note 4 at para 23. To succeed with a negligence action against the will drafter, the plaintiffs must directly challenge whether the testator knew and understood the contents of their will. Moreover, a finding that the will drafter failed to give effect to the testator’s intent when drafting the will “would contradict the grant of probate, which conclusively determines the will’s validity and contents”: at para 29.
[11] See Oosterhoff on Wills, supra note 2 at 205, cited in Cooke, ibid at para 17. By issuing a certificate of appointment, the court is certifying that the probated document constitutes the deceased’s will and that the testator knew and understood its contents: Cooke at paras 27-28.
[12] Cooke, ibid at para 26. See also para 33: “The evidence required to succeed in an application for rectification and in this negligence action would be essentially the same. If the plaintiffs have a valid claim in negligence, they also have a strong claim for rectification of the will”.
[13] Under section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26, it is also possible to apply for probate of a testamentary document or writing that was not properly executed and made so long as it is validated by the court.
[14] See, for example, Anroop et al v Naqvi, 2025 ONSC 160 at para 37.
[15] See Cooke, supra note 4 at para 17.
[16] Depending on the instrument, it may not be appropriate to probate a testator’s final testamentary instrument. An instrument which is invalid should not be put forward for probate: Ram v Prasad, 1998 CarswellBC 1627 at paras 15-16, aff’d 1999 BCCA 426. An estate trustee also should not move for probate if they believe that the instrument is not valid: see Geatros v Koropanos, 1974 CanLII 902 (SKKB) at para 59, quoting Page v Williamson (1902), 87 LT 146 at 147. See also Suzana Popovic-Montag and Nick Esterbauer, “Propounding a Will Under Attack: The Role of the Personal Representative in Estate Litigation” (May 2022) 41 ETPJ 239.
[17] Probate Practice, supra note 5 at §18:2.
[18] Cooke, supra note 4 at para 21.
[19] See Magnotta v Magnotta, 2020 ONSC 316 at para 35; Probate Practice, supra note 5 at §18:2.
[20] A named estate trustee may be passed over if they lack capacity: see Gefen v Gefen et al, 2022 ONSC 6259, aff’d 2023 ONCA 406. See also Probate Practice, ibid at §7:3.
[21] See Chieffallo v. Blair, 2025 ONSC 3411.
[22] See, for example, Re James Estate, 2023 ONSC 6432, aff’d 2024 ONCA 623, leave to appeal refused 2025 CanLII 33157 (SCC). In this case, the court of first instance refused an application to appoint a disbarred lawyer as estate trustee as the applicant was “no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness”: at para 21.
[23] See, for example, Re Becker, 1986 CanLII 2596 (ON SC).
[24] See the Trustee Act, RSO 2000, c T.23, s 37.
[25] Probate Practice, supra note 5 at §7:3.
