In Ontario, a will challenge typically begins as an application. If the case involves material factual disputes and credibility issues, it can be converted to an action for a fair resolution. Stuart Clark previously blogged about the differences between applications and actions, the main difference being that applications are decided on affidavit evidence and actions on live oral (or viva voce) evidence.
A relatively recent motion decision–Salewski v. Aviva Insurance Co. of Canada, 2022 ONSC 7230–though an insurance case, cogently reaffirms when and why conversion is appropriate. Importantly, it stands for the proposition that Rule 38.10 conversion relief is available at an early stage in the litigation and the parties are not required to await a final application hearing.
Why Convert?
The core principle is procedural fitness: use an application only for disputes that do not hinge on material disputed facts. Salewski underscores that when a case presents conflicting evidence on key issues, needs credibility assessments, or involves complex issues (like expert evidence), an action is the proper route.
In Salewski, the court noted that expediency alone is not a reason to cling to the application process; if a case “clearly is an action” in nature, converting early avoids wasted time and the risk of multiple proceedings (for example, part of the case being sent to trial later by the hearing judge). By converting up front, parties can engage in full discovery and present everything at a single trial, rather than fragmenting the litigation.
Key Considerations for Will Challenges:
These principles resonate in will challenges. If questions of undue influence, testamentary capacity, or suspicious circumstances are raised with evidence on both sides, a judge likely cannot resolve the matter on paper. Conversion to an action ensures the judge can hear viva voce testimony from key witnesses (e.g. the drafting lawyer, medical experts, family members) and thoroughly evaluate who is telling the truth. A will challenger must first have a credible case by meeting the minimum evidentiary threshold; if they do, and the outcome turns on fact-finding and credibility, the proceeding should continue as an action with the heightened procedural safeguards.
Crucially, Salewski confirms that a party need not wait for the final application hearing to seek conversion. A pre-hearing motion can and should be brought once it’s clear that a trial is required. Raising the conversion issue early can clarify the litigation path and reduce protracted litigation.
The Bottom Line
The decision to convert a will challenge into an action hinges on whether justice requires the full toolkit of a trial. Salewski serves as a reminder that our Rules are flexible and liberally construed: they allow judges to ensure that complex, fact-driven cases are heard on the proper footing. Assessing early on whether a will challenge is “application-ready” or whether it’s truly a trial in waiting, can permit the procedural course to be charted accordingly.
Thanks for reading and have a great week!
By Jordyn Sanford