In Will Challenge cases, the key evidence often resides with individuals who aren’t parties to the proceeding. These third parties may hold the only firsthand observations of the testator’s condition or intent. Their role is crucial, and the Rules of Civil Procedure offer a formal process to examine them under oath: Non-Party Examinations.
What Is a Non-Party Examination?
A non-party examination is a discovery procedure governed by Rule 31.10 of the Rules of Civil Procedure. It allows a litigant to examine a person who is not a named party to the lawsuit but may possess information relevant to the case. In estate litigation, common non-party witnesses include:
- The drafting solicitor who prepared the disputed will;
- The physician or nurse who treated the deceased;
- Neighbours, support workers, or friends who interacted with the deceased near the time of the will’s execution; or
- Accountants, financial advisors, or bank employees familiar with the deceased’s finances.
These individuals may have essential evidence regarding the testator’s decision making ability, mental capacity, susceptibility to influence, or testamentary intent.
When Is Leave Required?
Unlike parties to the action, non-parties cannot be examined as of right. Leave of the court is required unless the examination is already authorized by an Order Giving Directions, which is common in will challenges.
To obtain leave under Rule 31.10 (2), the party seeking to examine a non-party must satisfy all of the following requirements:
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.
Why Are Non-Party Examinations Important in Will Challenges?
Estate disputes often involve questions of testamentary capacity, undue influence, or suspicious circumstances. Medical and legal professionals who interacted with the deceased may have contemporaneous knowledge of the testator’s cognitive function, mental capacity, and intentions.
Crucially, these witnesses are neutral and have no stake in the litigation — their evidence often carries more weight than that of interested family members. Courts have repeatedly acknowledged the value of such observations, especially when other evidence is limited or absent.
Best Practices for Requesting and Conducting an Non-Party Examination
1. Build the Evidentiary Foundation
To obtain leave under Rule 31.10, include detailed affidavits and evidence explaining:
- Why this witness has material information?
- Why it can’t be obtained elsewhere?
- How the examination will assist the court without causing unfairness?
Courts are increasingly scrutinizing generic or boilerplate Orders Giving Directions. As noted in Seepa v. Seepa 2017 ONSC 5368, judges expect tailored requests backed by real evidence — not fishing expeditions.
2. Serve a Summons
Even if the Order Giving Directions authorizes the examination, it’s good practice to serve a Summons to Witness, advising them to bring relevant documents (medical records, solicitor’s files, etc.). This ensures the witness understands the scope of their involvement and allows time to retain counsel if necessary.
3. Prepare Thoughtfully
- Review all documents first.
- Create a chronology and family tree to guide questioning.
- Be strategic — tailor your questions to the theory of your case.
4. Consider the Witness’s Role
Professionals like doctors, lawyers, and financial advisors may have insurers (e.g., CMPA or LawPRO) and/or legal counsel. If you’re examining them, expect their legal counsel to possibly seek costs for their preparation and attendance.
5. Know the Limits
- These are not cross-examinations.
- Don’t ask hypothetical or practice-standard questions.
- Focus on the facts relevant to the deceased and the Will.
What Happens After the Examination?
- Transcripts must usually be shared with all parties, especially if the examination was conducted with leave (Rule 31.10(3)).
- The evidence can be used to test credibility or support or rebut key factual assertions.
Importantly, these transcripts cannot be read in as admissions at trial (Rule 31.10(5)), but they may assist in preparing for mediation, narrowing issues, or challenging the strength of opposing claims.
Considering a Non-Party Examination?
While non-party examinations are invaluable, they’re not always appropriate. Counsel should first ask:
- Can I obtain this evidence another way?
- Is the benefit proportional to the burden and cost?
- Will the court view this as overreaching?
Courts are increasingly emphasizing proportionality, and improper use of non-party discovery can result in refused leave, adverse cost orders, or evidence being excluded.
Final Thoughts
Non-party examinations are often the best, and sometimes the only, way to access the truth about the deceased’s actions, intentions, and capacity. Whether it’s a lawyer who drafted a will, a doctor who monitored health, or a financial advisor who updated the deceased beneficiary designations late in their life, these witnesses can often offer evidence that is central to the dispute. When used wisely and within the scope of the Rules of Civil Procedure, non-party examinations are a vital tool in litigation a Will challenge.
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