Will Challenges: How Much Evidence is Needed to Start

November 8, 2006 Hull & Hull LLP Wills Tags: , 0 Comments

In a will challenge proceeding, after the Notice of Objection is filed, the next step, procedurally, is the Motion for Directions. On this motion, the Court grants an Order that sets out the issues to be tried, and sets out the procedure for advancing the claim. The Order normally allows the parties to obtain evidence from medical professionals, lawyers involved with the deceased, and financial institutions. It provides for discovery, and, often, for mediation.

An issue that often arises where an objection is seen as unfounded is whether the Motion for Directions can be opposed on substantive grounds. Propounders of a will are often of the view that because the will challenge is so weak, it shouldn’t even be allowed to get off the ground.

However, it must be noted that on a motion for an Order Giving Directions, the Court will not make an inquiry into the merits of the proceeding. The Court does not have any authority to dispose of the claim based on the alleged lack of testamentary capacity or undue influence in a summary manner on a Motion for Directions.

Authority for such a proposition is found in the decision of Hie v. Lonsberry Estate (1989), 32 E.T.R. 288 (Ont. Div. Ct.). There, the Court recites the principal that next of kin are as of right entitled to have the Will approved in solemn form and to put the executors to the strict proof thereof.

To a similar end, if the will challenge is brought by way of a Statement of Claim, particulars of allegations of testamentary capacity or undue influence will not be required: see McIlveen v. Johnston, [1945] O.W.N. 344 (Ont. H.C. J.) Such particulars are not normally within the knowledge of the party alleging the lack of capacity or undue influence, at least at the preliminary stage.

The issue was also discussed in The Estate of Sylvia Jaychuk, unreported, November 7, 1996 (O.C.G.D.). There, Madam Justice Greer stated that the Estate rules were developed to permit an expeditious proceeding to take place in will challenge cases. She observed that the Affidavit in support of the Motion for Directions under the Estate Rules is to provide a procedure to get the Order For Directions of trial of issues. Substantive matters are not dealt with at this preliminary stage.

Finally, I note the comments of Mr. Justice Taliano in the matter of Stefanik v. Stefanik (2000) unreported, August 29, 2000 (Ont. S.C.J.). There, the Court considered a motion under Rule 75.05 for the return of a Certificate of Appointment pending determination of the validity of the testamentary instrument. Mr. Justice Taliano observed in paragraph 5 that:

“Traditionally, orders requiring that a will be proved in solemn form have not been difficult to obtain. It might even be suggested that such orders are virtually automatic when questions surrounding the testator’s knowledge and capacity are raised. Perhaps that is so because next of kin should be entitled to be assured by sworn evidence that the document in question reflects the true will of the testator and that the testator had testamentary capacity when he sign the will. This is particularly so, when those who might reasonably expect to be benefit [sic] from a will have been excluded or those who might not anticipate being beneficiaries, become the recipients of an unexpected windfall. In any event, the requirements to obtain an order, have not been exacting.”

At the preliminary stage of a will challenge proceeding, a challenger does not yet have access to the medical and legal evidence. The Courts will still allow the proceeding to advance notwithstanding this lack of factual foundation.

Have a great day,

Paul Trudelle

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