Show me the Money! Show me the Will!

October 4, 2021 James Jacuta Litigation, Wills Tags: , , , 0 Comments

On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will of the deceased be produced – as indicated in the edited reasons that follow below:

This is a motion for the disclosure of the complete will of the deceased. The Plaintiff in this action is the son of the deceased by his first marriage. The Defendant is the deceased’s second wife.

Under the deceased’s will, the son was to have received a legacy of $20,000.00. However, he may dispute both the will and the legacy that he has received, as he believes he was promised more by the deceased. He seeks production of the will.

Counsel for the Defendant argues that the will should not be produced as it is not going to be probated. There are no assets in the estate because everything passed by way of joint right of survivorship.

Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. This discretion is not dependent on a lawsuit being pending before the Court.

In this case, the Plaintiff is mentioned in the will. The Defendant’s argument that the document should not be produced because it does not matter is without merit. The Plaintiff is entitled to satisfy himself as to what the will contains, and he is clearly a party with a potential interest in the estate. It may also be open to the Plaintiff to argue that the will should be set aside, depending on the contents of the will.

Thanks for reading!

James Jacuta

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