In estate litigation, it was historically common for parties to a will challenge to agree at the outset to an Order directing production of medical records and the records of the drafting lawyer. Indeed, it was pretty much a given.
Since then, Neuberger v. York has ushered in the era of minimum evidentiary threshold analysis as to when a party may be entitled to proof in solemn form. Coupled with the approach espoused by Justice Myers in Seepa vs. Seepa, it is no longer a certainty that a party to a will challenge will be entitled to such production.
But are there circumstances where production of medical records alone is an appropriate direction to be made on an Order Giving Directions? This was the question posed to Justice Gilmore in Estate of Elaine Culiner, deceased, a recent unreported Toronto Estates List case and to which she replied in the affirmative. (Please email dsmith@hullandhull.com for a copy).
In this case, the Deceased had made six wills spanning the period 2011 to 2017. None of the Wills left the Objector (one of her children) more than $25,000. The first two left him nothing and the last two, which left him $25,000, contained an in terrorem clause. It is worth noting that all wills postdated an abandoned civil proceeding in which the Objector had sued the Deceased. The Objector sought medical records and production of the notes and the right to examine the drafting lawyer of the last three wills (the first three having been drafted by different lawyers).
In the face of a eulogy which appeared to acknowledge some issues with the Deceased’s mental faculties, the estate trustees agreed to production of medical records to resolve whether there was sufficient evidence to allow the objector to have proof of the will in solemn form. However, they refused to agree to an Order directing production of the notes and the examination of the drafting lawyer.
Justice Gilmore agreed with this approach:
“The consent to production of medical records to address the one area in which [the Objector] has raised a reasonable evidentiary issue is consistent with the efficiency, affordability, and proportionality of a customized process as per Seepa.”
Thanks for reading,