/ Case Law

Case Brief - Standing and financial gain

In Moses v. Moses, 2021 ONSC 587, the S.C.J. considered whether a son had standing to challenge his father's will, given that the father's previous will also left nothing to his son.


Aby and Rosy were married for many years and had two children, Reuben and Rachel. Aby ran the family business, Metro Hardware and Maintenance ("Metro") in Toronto. Reuben worked at Metro beginning in 1988 and took over in a managerial role in 1996.

Aby became ill and died on July 12, 2019. Three months before his death he made a primary and secondary will (the "2019 will") leaving everything to Rosy, and in the event of Rosy's death, to Rachel.

Reuben applied to the court seeking to have the 2019 will invalidated because of undue influence from Rosy. Reuben claimed that this father promised to bequest his interest in the family business to him. He claimed that Aby was heavily dependent on Rosy in the last years of his life, due to his illness, and that Rosy and Rachel coerced Aby into excluding Reuben from the will.

Reuben also launched a separated suit claiming a 50% stake in Metro on the basis of proprietary estoppel.

Rosy and Rachel produced Aby's previous will from 1996 (the "1996 will"), which also left everything to Rosy. They provided evidence that this will was prepared by a lawyer and executed properly. They claim that even if Reuben is successful, he is not entitled to Aby's estate. Since he lacks a financial interest in the estate, Reuben lacks standing to bring this application.


Does Reuben have standing to challenge his father's will?


Rules of Civil Procedure

Rule 75.06(1) of the Rules of Civil Procedures states:

Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court

The case law indicates that a "financial interest" does not need to be conclusive and that the threshold is a low one (see Smith v. Vance, [1997] O.J. No. 6534 (Div. Ct.); W.(W.) v. Y.(Y.), 2016 ONSC 2387). To have standing, an applicant must show that they have something to gain (see Adams Estate v. Wilson, 2020 SKCA 38).

Reuben claims that the court cannot assume the 1996 will is legitimate, and therefore if successful, he has a potential financial interest in Aby's estate.

But given the evidence provided by Rosy and Rachel that the 1996 will was properly executed, this will is presumptively valid and would also exclude Reuben from Aby's estate. Since Reuben would not get anything under either will, he lacks a financial interest, and therefore standing, to challenge the 2019 will.

Estates Act

Reuben also relies on s. 23 of the Estates Act, which states:

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 such rules and to the discretion of the court.

Reuben claims that he has an interest in the property affected by the will "by operation of law" because of his civil claim for shares of Metro.

But s. 23 only applies when a proceeding is commenced for proving a will in solemn form or revoking probate. That is not the case here.

Bottom Line

You can't challenge a will if you don't stand to gain anything.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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