The traditional rule in Ontario is that one cannot challenge a will while the testator is still alive. However, in recent years, there have been some cases in which judges have expressed a willingness to adjudicate upon the validity of a will prior to the testator’s death. These cases might be mere anomalies or they might be signs that the general rule is weakening.
This paper offers readers a non-exhaustive review of the jurisprudence on the subject. Readers are strongly encouraged to explore these additional publications1 and to conduct their own further research.
Introduction: the waste paper rule
Will a court in Ontario set aside the last will and testament of a testator who is still alive? For the short answer to this question, we can turn to some of the well-loved Victorian eloquence of Lord Chancellor Hardwicke in the case of Duke of Marlborough v. Lord Godolphin:
“[T]he law says that a testamentary act is only inchoate during the life of the testator from whose death only it receives perfection, being until then ambulatory and mutable, vesting nothing, like a piece of waste paper …”
In other words, no. As a piece of waste paper, a will is immune to challenge prior to death. The logic is simple to follow: the court should not be called upon to determine the validity of a document that could, at least in theory, be revoked by a new will the very next day.
Andruchow (Trustee of) v. Seniuk provides a stern warning to anyone who would ignore the waste paper rule. The case involved the Albertan equivalent of a Rule 21 motion to strike a claim for disclosing no reasonable cause of action. The statement of claim sought to set aside the last will and testament of Mr. Andruchow, who was living at an extended care hospital in Mundare, Alberta, at the time. Madam Justice Veit pulled the following cases herself: Duke of Marlborough v. Lord Godolphin,  28 All E.R. 41 (H.L.); Westminster’s Deed of Appointment, Re,  Ch. 265 (Eng. Ch. Div.); Schroeder, Re (1965), 8 C.B.R. (N.S.) 156 (Ont. S.C.); Smith v. Smith and Others (June 18, 2001, High Court); and Minister of National Revenue v. J. Colford Contracting Co.,  Ex. C.R. 433 (Can. Ex. Ct.). Justice Veit then reached the following conclusion on the law:
“In summary, the reason why virtually no cases can be found of the type that would help to elucidate the issue before this court is that, for nearly 500 years, the English common law has held that, during the life of the testator, a will is no more than a piece of waste paper. It then becomes obvious why courts will not make entertain costs about waste paper — whether the answer is framed in mootness or in excessive expense relative to the potential benefit, to litigate over a piece of waste paper is a poor use of personal and state resources.”
The statement of claim was struck in its entirety. Justice Veit even went so far as to order costs against the trustees personally, writing:
“Trustees must act prudentially. In the circumstances here, it was neither necessary nor prudential for the trustees [to] embark upon litigation over what amounts, in law, to a ‘piece of scrap paper.’”
And yet, there are rumblings in the case law and some budding exceptions.