In Ontario, a surviving spouse has a strict 6-month deadline to choose whether to inherit under the Will or claim an equalization payment. If you miss this deadline, you automatically take under the Will. Getting a court to extend the deadline or allow you to revoke your choice requires proving you acted in good faith and lacked crucial financial disclosure from the Estate Trustee.
When a spouse passes away, the initial months are often clouded by grief, making complex legal decisions incredibly difficult. In Ontario, the Family Law Act imposes a strict 6-month time limit from the date of death for a surviving spouse to file an election. You must decide whether to accept your inheritance under the Will or demand a division of Net Family Property (equalization). If you stay silent and the clock runs out, the law deems that you have chosen to inherit under the Will.
But what if you discover new, hidden assets after the 6 months have passed? Or what if you hastily signed the election form without fully understanding the financial consequences? 📍 Whether you are dealing with an estate in Kitchener, Markham, or Vaughan, changing your mind or extending the deadline after the fact is not a simple paperwork fix. It requires a formal motion before a judge at the Superior Court of Justice, and the legal hurdles are high.
Step-by-Step Process in Ontario
Revoking an election or extending the 6-month deadline is an uphill battle. The courts prefer finality in estate administration. Here is the process your lawyer will use to seek relief from the court.
Step 1: Identifying the Legal Grounds for Relief
Under Section 2(8) of the Family Law Act, the court will only grant an extension if you meet very specific criteria. Your lawyer must prove that there are clear apparent grounds for your equalization claim, that you sought the extension in good faith, and that the delay occurred because you did not know about a specific asset, or because the Estate Trustee failed to provide adequate financial disclosure.
Step 2: Drafting the Affidavit
You cannot simply tell the judge you made a mistake. You must provide sworn evidence. 📝 You will work with your lawyer to draft a detailed Affidavit explaining exactly why the deadline was missed or why the initial election was fundamentally flawed. For example, you might document how you repeatedly asked the Estate Trustee for pension valuations, but they ignored your requests until month seven.
| Reason for Missing Deadline | How the Ontario Court Views It |
|---|---|
| Estate Trustee hid assets | Strong grounds for an extension. |
| Pending property appraisal | Good grounds, provided you acted in good faith. |
| Forgot to check the calendar | Very weak grounds; likely to be dismissed. |
| Simply changed your mind | Will not be accepted by the Superior Court. |
Step 3: Filing a Notice of Motion
Your lawyer will file a formal Notice of Motion at the Superior Court of Justice. This legal document asks the judge for an order extending the time to file Form 1, or allowing you to revoke a previously filed Form 1. This motion must be formally served on the Estate Trustee and all other beneficiaries whose inheritances might be affected by your change of heart.
Step 4: Arguing “No Prejudice”
To win, your lawyer must convince the judge that no other person will suffer “substantial prejudice” if the extension is granted. If the Estate Trustee has already distributed the money to the beneficiaries because the 6-month waiting period expired, the court is highly unlikely to grant your request, as pulling the money back would severely prejudice those beneficiaries.
How Much Does it Cost in Ontario?
Fixing a missed deadline is significantly more expensive than filing on time. 💰 As of May 2026, anticipate the following costs in CAD:
- Court Motion Fees: Filing a Notice of Motion in the Superior Court of Justice requires a mandatory court fee of $339 CAD.
- Lawyer Fees: Drafting affidavits and arguing a contested motion in court usually costs between $3,500 and $8,000 CAD.
- Cost Awards: If you lose the motion, the judge may order you to pay the legal fees of the Estate Trustee, which can add thousands to your final bill.
How Long Does the Process Take?
Time is your worst enemy in this scenario. You must file your motion the moment you realize a mistake has been made. Waiting even a few extra weeks can cause a judge to rule that you did not act in good faith. Once filed, getting a hearing date at the Superior Court of Justice can take anywhere from 3 to 9 months, during which the administration of the estate is essentially frozen.
Frequently Asked Questions (FAQ)
Can I ask the Estate Trustee for more time without going to court?
No. The 6-month deadline is a statutory limitation period set by the province of Ontario. The Estate Trustee does not have the legal authority to grant you an extension; only a judge at the Superior Court of Justice can do that.
What if the Estate Trustee distributed the money before the 6 months expired?
If the Estate Trustee distributes the estate prior to the 6-month mark and you later choose to claim equalization, the Trustee can be held personally financially liable for the shortfall. They are legally required to hold the funds until the deadline passes.
I received terrible advice from my first lawyer. Is that grounds to revoke?
Sometimes. If you can prove that you received grossly negligent legal advice that caused you to make an ill-informed election, a judge may consider this a lack of true understanding and allow a revocation. However, you may also have to file a professional negligence claim against the first lawyer.
Does the 6-month clock start when I get a copy of the Will?
No. The 6-month countdown begins on the exact date of your spouse’s death, regardless of when the Will is found, when the funeral takes place, or when the Certificate of Appointment of Estate Trustee (probate) is granted.
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