In the recent case of Johnson v. Johnson 2022 ONCA 682, the Ontario Court of Appeal dismissed the Applicant’s appeal in considering the increasingly litigated area of the minimum evidentiary threshold required to proceed to obtain documentary disclosure and otherwise proceed with a will challenge.
The Court of Appeal upheld the finding of the Application Judge that the Respondent Estate Trustee was not required to prove the Will in solemn form. The Court of Appeal found that the Respondent mounted a vigorous response to capacity questions at the hearing of the application, and there was no error by the Application Judge in the way she considered the evidence.
In this case, the testator (“Mrs. Johnson”) died in August 2020 at the age of 99. She had a last will executed in August 2015. At her death, her estate was worth $457,000. The Will left assets to two of her three children, Janice, and Hugh, and removed Nancy as beneficiary.
Janice obtained a Certificate of Appointment of Estate Trustee With a Will in March 2021.
Nancy challenged the validity of the 2015 will on grounds that her mother lacked capacity. She sought to have the will proven in its solemn form. Nancy noted that her disinheritance was inconsistent with the entitlement she was to receive under her mother’s previous will executed in 2007.
In response, the Respondent adduced evidence demonstrating that Nancy and her mother had a falling out in 2014, during which time Nancy was her mother’s power of Attorney for property and personal care. Mrs. Johnson, with the aid of other two children, had proceeded to litigation to order that Nancy pass accounts with respect to her personal investments.
Mrs. Johnson’s caregivers also testified witnessing Nancy becoming abusive towards her mother in June 2015, two months before the Last will was executed.
Although Mrs. Johnson was diagnosed with dementia, the court found that mere diagnosis did not determine the question of capacity. Evidence consisting of correspondence between the treating medical practitioner and her financial advisor seemed to speak to capacity.
The Application Judge further heard favourable evidence of Mrs. Johnson’s solicitor, Mr. Gervais. He described Mrs. Johnson as very sharp and knowledgeable of her finances in 2015. Mr. Gervais was the lawyer involved in litigation against Nancy with respect to the passing of accounts application, who notably, at the time, saw no reason to involve a litigation guardian for Mrs. Johnson during litigation. The lower court was satisfied with this evidence.
Further, the drafting solicitor for Mrs. Johnson’s will, Mr. Leach, a long-time lawyer for Mrs. Johnson, observed no capacity issues during his encounter with Mrs. Johnson in 2015 and was comfortable receiving instructions to draft her a new will.
Nancy argued that the Application Judge erred in reaching its conclusion without consideration of her mother’s medical, financial, and legal documents, none of which were produced at the hearing. Nancy argued that she met the minimum evidentiary threshold required to obtain discovery of such documents.
The Court of Appeal disagreed and regarded this request as defeating the essence of the principle to protect estates against the cost involved with document production, absent any inexplicable position that called into question the validity of a will.
The Court of Appeal refused to intervene to reweigh the evidence heard on appeal and accepted the Application Judge’s decision that the Respondents sufficiently answered the grounds underlying the challenge related to capacity.
Thank you for reading.
Mashal Hakimi