Medical records are often among the first documents sought in a will challenge. Where testamentary capacity or undue influence is in issue, they can provide important evidence regarding a testator’s cognitive functioning, vulnerability, and surrounding circumstances. However, recent Ontario decisions serve as a reminder that the pursuit of relevant evidence must be balanced against a deceased person’s privacy interests.
Privacy Does Not End at Death
While medical records are frequently relevant in estate litigation, parties are not entitled to examine a deceased person’s entire medical history simply because a will has been challenged. Disclosure requests must remain tethered to the issues in dispute.
The Divisional Court’s recent decision in Farooque v. Korba, 2026 ONSC 3124, illustrates this principle. In the originating proceeding, the applicant challenged the deceased’s 2021 will and sought broad production of the deceased’s medical and counselling records. At first instance, the Court ordered production of counselling recordings dating back to 2005 on the basis that they might shed light on the relationship between the deceased and the applicant.
The Estate Trustee successfully appealed that aspect of the decision. The Divisional Court held that the connection between the records and the issues in dispute was too remote. Permitting disclosure in those circumstances would amount to the type of fishing expedition long discouraged by the courts. The records were therefore not producible.
Farooque recognizes that even where capacity or undue influence issues are at play, the Court must remain mindful of the privacy interests of the deceased. Relevance, not speculation or mere curiosity, remains the key determining factor for the production of medical records.
A similar approach was taken in Gilbert v. Girouard, 2023 ONSC 4445. In her Reasons on Motion, Justice Pierce emphasizes that the central inquiry in a capacity challenge is generally the testator’s state of mind when instructions were provided and the will was executed. Records falling unnecessarily far outside that period may have limited evidentiary value and may unnecessarily intrude upon the deceased’s privacy interests.
In Gilbert, the evidence established that the deceased had deliberately chosen not to disclose his cancer diagnosis to the applicants during his lifetime. Justice Pierce found that this reflected a clear desire for privacy, one that should not be lightly disregarded after death. In those circumstances, the Court declined to order production of records that would have disclosed information the deceased had intentionally kept private.
Takeaways
Estate litigants and litigators alike should remember that privacy interests do not necessarily end at death. When considering requests for medical disclosure, courts must balance the need for relevant evidence against the deceased’s dignity and privacy interests.