Challenging Challenges

September 14, 2017 David Freedman Uncategorized 0 Comments

The recent decision of the Hon. Justice Myers in Seepa v. Seepa, 2017 ONSC 5368 (Ont. S.C.J.) is an important one for estates and trusts litigation counsel. The issue raised is of quite practical importance respecting the initial stages in estate litigation: the evidential threshold that must be met in order to secure a conventional Order Giving Directions in a Will contest.

The facts in Seepa v. Seepa are unimportant for present purposes. The matter appeared before the Court on a motion for directions pursuant to sub-rules 75.01 and 75.06 of the Rules of Civil Procedure. Myers J. first considered dicta of Gillese J.A. in Neuberger v. York, 2016 ONCA 191 (Ont. C.A.) at para.88:

[88]      … In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.

[Emphasis per Myers J.]

What is the necessary  “minimal evidentiary threshold”? Both Gillese J.A. and Myers J. fasten up the inquisitorial nature of probate; the fact that probate speaks to proper rights in assets good against the world [I have discussed this at length elsewhere; see “Probate Contests And The New Law Of Summary Judgment” (2014), 34 Estates, Trusts & Pensions Journal 199].

Myers J. held:


[39]     The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiary threshold.” I cannot offer much desirable certainty in this case. But discretionary decisions are generally not certain of outcome by definition. In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak.

[40]     It must be borne in mind at all times that what is at issue is whether the court should exercise its discretion to require proof in solemn form. The applicant will not likely be able to prove the case on the merits. This is not summary judgment. The question is whether the applicant ought to be able to put the estate and the beneficiaries to the burden of proof, expense, and delay by requiring proof in solemn form and, if so, what process of proof in solemn form will best achieve that outcome, be consonant with the goals of the civil justice system, and recognize the particular concerns that are to be balanced in the estates litigation context.

[49]     The Court of Appeal decided Neuberger two years into the culture shift heralded by Hryniak. The appellate courts require this court to always be mindful of the goals of the civil justice system so as to implement the law to achieve fair and just outcomes through processes that are efficient, affordable, and especially proportional in light of the facts and circumstances  of each case. In my view, the practice under Rule 75.06(3) serves the interests of the parties well when directions are made on a bespoke basis to fit the measurements of the case. Judicial oversight through case conferences and case management techniques are available under Rules 75.06(3)(g) and 50.13 among others. The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties. But processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, use of summary proceedings where possible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.

[Emphasis added.]

Justice Myers decision in Seepa sits well with Justice Brown’s decision in Re Estate of Ruth Smith; Smith v. Rotstein, 2010 ONSC 2117 (S.C.J.), at para. 40-42, respecting the sufficiency of a Notice of Objection.

If this decision is accepted as correct, estate litigators will be required to lead evidence on behalf of an objector early on in the proceedings in a manner that departs from the present practice. While the goal of reducing frivolous cases is laudable, it may well be that legitimate challenges will become more expensive as additional procedural steps may be required. Watch this space.

Have a nice weekend,


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