In Ontario, it is now possible to use section 9 of the Estates Act, RSO 1990, c E.21to seek production of a document or writing that could be validated as a will under section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”).
Section 9 of the Estates Act expresslyempowers the court to order a person to produce “any paper or writing being or purporting to be testamentary,” and is typically used to compel production of a deceased person’s will. As noted in Lipiec v. Lipiec, 2021 ONSC 6292, section 9 “provides a broad discretion for the Court to order production of a testamentary instrument.”
It is now clear that this broad discretion may extend to testamentary instruments which have the potential to be validated by the court, in light of Justice Myers’ recent decision in White v. White, 2023 ONSC 7286. Section 9 was utilized in this case to compel the deceased’s lawyer to disclose a draft will which had been prepared at the behest of the deceased shortly before she passed away.
In terms of background, the deceased had executed a will several years earlier, but wanted to change several of the bequests in that instrument. After the draft will with the updated bequests was created, the deceased was hospitalized and died before she could review the draft will with her lawyer. The applicant, one of the deceased’s sons who only inherited 10% of the residue of the estate through the existing will, asked the court to address “whether a possible beneficiary is entitled to compel disclosure of documents in the possession of a lawyer for a deceased person to look for evidence to see if any paper or writing held by the lawyer might be sufficiently close to a will to be recognized as a will under the new authority under s. 21.1 of the SLRA.”
Before discussing the grounds on which Justice Myers granted the application for production of the draft will, it merits noting that the applicant’s first attempt at seeking disclosure under section 9 was rejected: see White v. White, 2023 ONSC 3740. When the original application was made, it was the first time that the court had been asked to use section 9 of the Estates Act to compel disclosure of a document or writing that could be validated as a will under section 21.1 of the SLRA. Justice Myers refused to grant the relief sought on multiple bases, including:
- the fact that the applicant had not yet commenced a will challenge with respect to the existing will, and also had not applied to validate the draft will under section 21.1,
- the applicant sought document discovery before a cause of action had been established,
- the applicant had not named any other beneficiary in the existing will as a party to the lawsuit,
- the potential increased scope or breadth of section 9 of the Estates Act if the application were granted, and
- the lack of clarity as to whether the minimal evidentiary threshold, applicable to will challenges, would have to be met to proceed with an application to validate the draft will.
Because of the unique questions identified by the court, the firm blogged about the initial application several times last year – see White v. White: The Intersection of Minimal Evidentiary Threshold and Court Ordered Validity, A Refresher on Solicitor-Client Privilege & the Wills Exception, and Top Wills & Estates Cases of 2023.
Upon being presented with further evidence and legal submissions (White v. White, 2023 ONSC 7286), Justice Myers ordered counsel for the deceased to disclose the draft will, in addition to her records, correspondence, notes and files related to the deceased’s estate planning. This was allowed because the applicant had taken steps to alleviate many of the concerns previously identified by Justice Myers. For example, the applicant had sued for recognition of the draft will as valid under section 21.1 of the SLRA, and all interested parties had been named. There was also additional evidence before the court confirming the existence of the draft will, and that the deceased’s lawyer had tried to share the draft will with the deceased a few days prior to her death, after she had been hospitalized. Justice Myers also found that the applicant’s materials met the minimum evidentiary threshold.
Concerns about solicitor-client privilege were also minimal, as the estate trustee, who had already applied for a Certificate of Appointment of Estate Trustee under the existing will, took no position on the application and the applicant’s brother, who inherited 90% of the residue of the deceased’s estate under the existing will, consented to the release of the lawyer’s file. Justice Myers also noted that a document which enshrines the deceased’s testamentary intentions, like a will, cannot be privileged, since the deceased person would have to share those intentions to have them carried out.
In granting the application, Justice Myers made it clear that his decision hinged on the fact that there was “a particular written will document that, as described in uncontested evidence, may meet s. 21.1,” and that his decision did not widen the scope of s. 21.1 to more broadly permit lawyers’ notes to be recognized as will documents, to permit fishing expeditions, or to foster litigation by disgruntled relatives.
To date, Justice Myers’ decisions in White v White are the only reported cases addressing the interplay between section 21.1 of the SLRA and section 9 of the Estates Act. Given the fact-specific nature of this case, it will be interesting to see the circumstances under which similar relief is granted in future cases.
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