In W. (W.) v Y. (Y.), the testator’s holograph will gifted the entire estate to his second wife, excluding his daughter and son from his first marriage.   The daughter commenced a will challenge and brought a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure.  The respondent second spouse opposed the motion.  She sought to have the will challenge dismissed on the grounds that insufficient evidence had been presented to support an inference that the claim should be heard.

A. Gilmore J. heard the motion, examined the issues and made two key rulings:

1. Financial Interest – Rule 75.06 allows any person who “appears to have a financial interest in an estate” to apply for directions as to the procedure for bringing a matter before the court.  Justice Gilmore concluded that it would be inappropriate at this early stage to determine that the applicant has no financial interest.  The threshold is a low one, such that an objector need not prove that she has a financial interest.  In any event, the possibility of an intestacy should the will challenge be successful was sufficient to warrant the court’s involvement.

2. Suspicious Circumstances – The deceased suffered an aggressive form of brain cancer that his daughter alleged caused cognitive impairments. The evidence adduced raised questions as to (i) the issue of capacity (echoed by Dr. Kenneth Shulman), and (ii) the prospect that certain portions of the will may offend public policy.  Given the wording of the offending provisions, notably described as “disconcerting”, this issue was also linked to that of capacity.  Gilmore J. ruled that it was not for the court to decide at the directions’ stage as to whether there are suspicious circumstances, but rather whether there is some evidence that would support a trial judge’s finding of suspicious circumstances in order to shift the burden to the propounder to prove capacity.   The evidence in this case satisfied this requirement.

This decision reminds us that a motion for directions is often a preliminary procedural step in estate litigation.  The court does not require conclusive evidence but only sufficient evidence to support an inference that the claims raise a genuine issue.  Opposing such a motion in an attempt to terminate the proceeding as a whole will not often be successful.

Thanks for reading and have a great day,

Natalia Angelini

You may also be interested in the following blog posts:

https://hullandhull.com/2009/04/motions-in-estates-litigation-longer-than-you-think/

https://hullandhull.com/2008/12/short-circuiting-the-frivolous-will-challenge/

https://hullandhull.com/2006/11/will-challenges-how-much-evidence-is-needed-to-start/