The Court of Appeal in the recent case of Leonard v Zychowicz, 2022 ONCA 212 agreed with the Superior Court’s decision to reject an expert’s evidence as being tainted by a summary of facts that was prepared by the Applicant’s counsel. 

In this matter, the Applicant challenged the validity of the will on the basis that the testator did not have the requisite testamentary capacity to draft the will. The Application Judge reviewed evidence from several witnesses, including the evidence of two experts.  

The Application Judge considered expert reports filed on behalf of the Applicant and Respondent, respectively. The judge questioned the report of the Applicant’s expert because he was given a summary of facts prepared by counsel for the Applicant. The summary of facts was acknowledged to be drafted with advocacy in mind, which tainted the report.  

The Application Judge disagreed with many of the assertions made in the report of the Applicant’s expert. Specifically, the Application Judge pointed to the opinion that “the stark difference in the two Wills 2002 and 2007 reflect radical changes in the testator’s thinking about potential beneficiaries”. However, the only change of substance between the two wills was the substitution of one niece for another, which the judge found not to be radical. 

The Applicant’s expert also adopted the opinion that the testator, having history of bipolar disorder, made her more vulnerable to influence; however, the Application Judge found that the evidence suggested that she was not vulnerable to influence.  

In contrast, the report of the Respondent’s expert was not influenced by a summary of facts prepared by counsel. The Application Judge accepted this report for this reason and for the reason that his opinion of the medical evidence was consistent with the judge’s view. Therefore, the Application Judge found the testator to have the requisite testamentary capacity and found the will to be valid. 

The Court of Appeal dismissed the Applicant’s appeal and found that the Application Judge was entitled to discount the evidence of the Applicant’s expert in favour of the Respondent’s expert.  

Beyond the expert evidence, the Court of Appeal found that there was ample evidence of the testator’s testamentary capacity and that there was no overriding and palpable error in the Application Judge’s assessment of the evidence.  

This case provides as a warning to counsel who may be using expert witnesses in their matters that any interference may discredit the expert. It is important to note that although counsel need to provide facts to the expert witness, they should be careful as to how those facts are presented and what the report is eventually based off of. Though in this case there was other evidence beyond that of an expert witness to substantiate testamentary capacity, counsel should always be cautious when directing an expert witness so that the report is not found to be tainted.  

Thank you for reading. 

Mohena Singh