Pre-Death Will Challenges – is it possible?



The concept of challenging a will before the testator’s death is a rare and complex legal issue that falls outside the traditional norms of estate litigation. In Ontario, as in many jurisdictions, the prevailing principle is that wills can typically only be challenged after the testator’s passing.

This blog post will explore the concept of pre-death will challenges, the circumstances in which they may be possible, and the importance of hiring a lawyer if you find yourself in such a situation.

The Waste Paper Rule

The conventional rule in Ontario, often referred to as the “waste paper rule,” dictates that a will cannot be challenged during the testator’s lifetime. The logic behind this principle is that the validity of a will depends on the testator’s death. Until that event occurs, the testator retains the right to amend or revoke their will at any time. Allowing pre-death will challenges could lead to a plethora of speculative litigation and the potential for double disputes after the testator’s death.

While the waste paper rule is firmly established in Ontario, recent cases have shown that there may be exceptions in certain circumstances. Justice Veit’s comments in Andruchow (Trustee of) v. Seniuk 2005 ABQB 549 and the case of Gironda v. Gironda, 2013 CarswellOnt 8612 (S.C.) case indicate that, although rare, courts may consider pre-death will challenges under specific conditions. Let’s delve into these unique scenarios.

The Gironda Case: A Rare Pre-Death Will Challenge

In Gironda v. Gironda, the case provides a glimpse into a situation where an Ontario court considered the issue of the validity of a will during the testator’s lifetime. Caterina Gironda, aged 92 at the time, had her sons, Frank and John Gironda, challenging her will, powers of attorney, and property transfers. They also sought a declaration of incapacity and the appointment of themselves as guardians, while their younger brother, Vito Gironda, opposed these claims.

This unique case demonstrates that pre-death will challenges are not entirely unheard of in Ontario. However, it’s crucial to emphasize that such cases remain the exception rather than the rule. They typically involve complex family disputes, high legal thresholds, and the need for compelling evidence regarding the testator’s permanent incapacity or undue influence.

Challenging a Will During the Testator’s Lifetime: Is It Possible?

The question arises: under what circumstances could a pre-death will challenge be possible in Ontario?

It seemed that after Gironda, a court might consider a pre-death will challenge if you could establish permanent incapacity. This is an exceptionally high threshold and would require strong evidence of permanent incapacity. The evidence must show that the testator’s cognitive or mental condition is so severe and irreversible that they cannot meet the legal requirements for making a valid will.

The Court of Appeal’s Stance in Palichuk v. Palichuk 2023 ONCA 116

In Palichuk v. Palichuk 2023 ONCA 116, the Court of Appeal for Ontario reaffirmed the prevailing principles regarding pre-death will challenges. The court emphasized that determining the validity of a will “depends upon a future contingency—the testator’s death.” The court cited the waste paper rule and the fact that a will speaks from death. The court also highlighted the potential for a flood of hypothetical litigation and the risk of double disputes if pre-death challenges were allowed.


While the Gironda case provides a rare example of a pre-death will challenge in Ontario, it’s essential to recognize that this case is an exception. The prevailing legal approach, as reaffirmed in the Court of Appeal’s decision in Palichuk v. Palichuk, emphasizes post-death challenges as the standard practice. Palichuk, being a higher court decision, reinforces the traditional rule that pre-death will challenges are generally not possible in Ontario. Therefore, if you are faced with a situation where you believe a pre-death will challenge is necessary, it’s important to consult with a lawyer to understand the current legal landscape and navigate the complexities of the process effectively. Your lawyer will be your advocate and guide, helping you protect your rights and interests in accordance with the prevailing legal principles in Ontario.

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