In the recent matter of Martin v. Martin, 2018 ONSC 1840, Justice Pattillo considered the evidentiary threshold placed upon a would-be will challenger, in light of the Court of Appeal decision of Neuberger Estate v. York, and the recent decision of Justice Myers in Seepa v. Seepa.

David Freedman has blogged on the Seepa decision here. Jonathon Kappy and I discussed the decision in our podcast, here.

In Martin, the deceased’s daughter objected to the validity of the deceased’s primary and secondary wills. The son, who was the executor named the wills, brought a motion to remove the Notice of Objection, alleging that the challenger did not provide any evidence to support the validity of the objection.

Pattillo J. reviewed the Ontario Court of Appeal decision of Neuberger, where the Court of Appeal held that a challenger must initially adduce some evidence which, if accepted, would call into question the validity of the will being propounded. If the challenger was not able to meet this threshold, then the challenge would be dismissed. If the threshold was met, then the court would order that the will be proved, and provide directions for the procedure for doing so.

In Seepa, cited by Pattillo J., Myers J. discussed the application of Neuberger, and noted that the tests set out in Neuberger left room for uncertainty. Myers offered some clarity, explaining that “At this preliminary stage, the issue is not whether the applicant has proven his or her case, but whether he or she ought to be given the tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.” To meet this test, the challenger must put some evidentiary basis forward.

Pattillo J. held that the threshold for maintaining the objection was low. However, more was needed that a mere suspicion.

In Martin, there was evidence of two witnesses, a daughter who was the deceased’s primary caregiver, and a housekeeper, as to the son’s dominating role with the deceased that raised the specter of potential undue influence. Further, there was evidence that the son was involved in drafting instructions for the deceased’s wills.

This evidence was, in Pattillo J.’s opinion, not adequately addressed by the son, and the challenge was allowed to proceed. Directions were given for the release of medical and legal notes and records.

Thank you for reading.

Paul Trudelle