For almost a decade, will challenges in Ontario have not been permitted to proceed to trial unless they satisfy the minimal evidentiary threshold, articulated by the Court of Appeal in Neuberger v York, 2016 ONCA 191. The purpose of the threshold is to screen out claims that are not supported by evidence at an early stage, thereby avoiding the cost, delay, and distress of unmeritorious estate litigation.
To date, the minimal evidentiary threshold has only been applied to will challenges in Ontario. However, in O’Brien v Deslippe, 2026 ONSC 58, a novel question arose – does the minimal evidentiary threshold also apply to other types of estate litigation?
Background
In O’Brien, no one was challenging the deceased’s will, which left the residue of his estate equally to his son and daughter. Instead, the litigation focused on a number of assets that passed outside of the estate, including:
- a condominium that the deceased held jointly with the daughter;
- a bank account used to pay the condominium mortgage, that was also held jointly with the daughter; and
- a RRIF and TFSA, both established after the deceased executed his will and both passing to the daughter by beneficiary designation.
Together, these registered accounts were worth approximately $179,000 at the time of death.
The parties agreed to proceed to trial to determine whether the presumption of resulting trust applied to the condominium; the son’s position was that the daughter held the condominium in trust for the estate.
The son also applied under Rule 14.05(3) of the Rules of Civil Procedure for an order directing that further issues be determined at trial, including:
- whether the daughter committed a breach of trust and breach of fiduciary duty by:
- taking the RRIF, despite the will directing her as estate trustee to “transfer such plan benefits to my issue then living,” and
- not disclosing the RRIF’s existence to the son for almost two years; and
- whether the funds in the joint bank account and the TFSA were held on a resulting trust for the estate.
In response, the daughter argued that the son’s application was, in substance, a motion for directions under Rule 75.06, and that his claims ought to meet the minimal evidentiary threshold in order to proceed.
The Court’s Decision
Justice Howard rejected the daughter’s argument on two bases.
(1) The nature of the proceeding
First, the Court noted that applications under Rule 14.05(3) are not subject to a minimal evidentiary threshold. While the son’s application materials did cite Rule 75.06 as one of the grounds for relief, Justice Howard held that this reference was not determinative of the nature of the proceeding. Technically, the son had not brought a motion for directions, and the Court emphasized that the mere availability of similar relief under Rule 75.06 will not convert a Rule 14.05 application into a Rule 75.06 motion for directions.
(2) The scope of the minimal evidentiary threshold
Second, Justice Howard held that the minimal evidentiary threshold only applies to will challenges, as compared to general estate litigation. More specifically, no precedent was put before the Court to establish that claims involving breach of trust or the presumption of resulting trust are required to satisfy the threshold in order to be tried.
Justice Howard also observed that the policy rationale underlying the minimal evidentiary threshold was of limited force in this case. The parties had already agreed to proceed to trial, thereby accepting the cost, delay, and emotional burden of trial proceedings – the very consequences the threshold is intended to mitigate.
Take-Aways, Plus a Lingering Question
For estate litigators, O’Brien v Deslippe offers two important lessons regarding the minimal evidentiary threshold:
- 1. Applications commenced under Rule 14.05 are not subject to the minimal evidentiary threshold; and
- 2. The minimal evidentiary threshold applies to will challenges specifically, rather than to estate litigation at large.
While the Court’s decision in O’Brien is illuminating as to the scope of the minimal evidentiary threshold, it does not necessarily close the door to further litigation on this issue. For example, an interesting issue yet to be considered by the courts in Ontario is whether the minimal evidentiary threshold applies when the validity of a testamentary instrument, other than a will, is challenged. This question could arise if, for example, the validity of a beneficiary designation were challenged, recognizing that:
- the designation of a beneficiary, like a will, is akin to a testamentary disposition: see Mak (Estate) v Mak, 2021 ONSC 4415; and
- beneficiary designations may be declared invalid on some of the same grounds as wills. For example, in Campo v Longo, 2024 ONSC 2041, the court concluded that a beneficiary designation was invalid due to incapacity and undue influence.
Whether these characteristics could, in future cases, justify extending the minimal evidentiary threshold beyond will challenges remains an open and potentially significant question.
Thank you for reading, and enjoy the rest of your week!