Fresh off the heels of my partner Suzana’s blog yesterday on the decision in Dinally v. Dinally comes another decision of Justice Myers, again dealing with the minimum evidentiary threshold.
In Carinci v. Carinci, Justice Myers starts off his assessment of a will challenge before him with a familiar characterization of a disgruntled child making allegations “based almost exclusively on his own subjective, conclusory evidence to support innuendo and supposition. He throws in a little old-fashioned mudslinging for good measure.”
And so our expectation, as we begin reading his decision, is that this will challenge will be dismissed. But then there is a twist: the evidence adduced by the Respondent allows the Applicant to surmount the minimum evidentiary threshold.
In this case, the last will reduced the objecting son’s share of the mother’s multi-million dollar estate from 25% (in the prior will) to a specific legacy of $200,000. A video recording made by the drafting solicitor and cross-examination of the Respondent estate trustee, tendered in answer to (and to refute) the will challenge, in fact had the opposite effect.
Justice Myers observed that the video evidence led him to question whether the testator was being coached off screen and to what extent the lawyer’s leading questions opened the door to question her capacity. In addition, on cross-examination, the daughter propounding the will gave uneven evidence relating to capacity and the existence and purpose of joint accounts.
To quote Justice Myers: “Evidence is not just adduced by affidavit. Evidence obtained by cross-examining a witness, including a party, may be used by any party. Sonya Carinci’s evidence provides an ample objective basis to say that if believed, the tests for incapacity and undue influence could be met. Her evidence raises questions that call out for an answer.“
The conventional wisdom is to meet a will challenge with a strong answer. Carinci shows us that there are perils in such an approach: once the answer itself raises questions, the minimum evidentiary threshold may be surmounted.
Thanks for reading,