Will challenges in Ontario have been subject to preliminary screening via the minimal evidentiary threshold since 2016, when the Ontario Court of Appeal decided Neuberger v York, 2016 ONCA 191. For the past decade, a person seeking to challenge the validity of a will has been required to adduce, or at least point to, some evidence that, if accepted, would call the will’s validity into question. Unless the threshold is satisfied, a challenger cannot access tools typically available to litigants, such as document discovery, and the will challenge cannot proceed.
Starting in 2024, the Manitoba Court of King’s Bench has also applied the minimal evidentiary threshold to several will challenges in that province. In an interesting twist, however, the Manitoba Court of Appeal recently held in Simmons v Sinclair, 2026 MBCA 74, that a will challenger was not required to satisfy the minimal evidentiary threshold to obtain disclosure because the parties had previously entered a consent order addressing the process for disclosure and discovery.
This decision raises a practical question for estate litigators in Ontario – can the parties to a will challenge in this province similarly bypass the minimal evidentiary threshold if they agree to a consent order?
Consent Order Governed Disclosure and Discovery in Manitoba Will Challenge
In the will challenge in Simmons v Sinclair, the parties agreed to a consent order in 2023 which required them to produce all relevant records and documents within their power, possession or control. The order also provided that they would be examined for discovery as if the application were an action.
Subsequently, in late 2024, the will challenger brought a motion seeking, amongst other relief, a further and better affidavit of documents from one of the parties and production of additional documents alleged to be relevant. Notwithstanding the consent order, the motion judge held that the will challenger was required to satisfy the minimal evidentiary threshold in order to obtain disclosure, and ultimately dismissed the motion on the basis that the threshold had not been met: see Re Simmons Estate; Simmons v Sinclair et al., 2025 MBKB 45.
On appeal, the Manitoba Court of Appeal overturned the motion judge’s decision, finding that the consent order was a “complete answer” to the issue. More specifically, the court explained: “A consent order is a binding order of the court and, since none of the parties sought to set aside or vary the order, it is an order of the court with the same force and effect as a judgment once it is signed by the court.”
Moreover, because the parties had already agreed to a process providing for disclosure and examinations for discovery, the Court of Appeal held that it was unnecessary for the will challenger to satisfy the minimal evidentiary threshold. The court held that the threshold did not apply in circumstances “where the parties had an opportunity to review the application and the alleged issues to be determined and then agreed on a process to proceed with the issues raised in the application as an action and also agreed on the disclosure of relevant documents, examinations for discovery and proceeding to a pre-trial conference.”
This decision is also noteworthy because the Court of Appeal expressly declined to determine whether the minimal evidentiary threshold should be adopted in Manitoba. On the one hand, the Court recognized that “there may be sound reasons” to require a moving party to satisfy a minimal evidentiary threshold before estate litigation proceeds to trial. However, the Court also acknowledged academic commentary cautioning the Court on the application of the threshold, specifically that it might prevent a legitimate inquiry into the validity of a will or unduly restrict the Court’s special responsibility to ensure that a will reflects the testator’s true intentions.
Could Parties in Ontario Bypass the Minimal Evidentiary Threshold?
The Manitoba Court of Appeal’s decision in Simmons v Sinclair raises an interesting question for Ontario practitioners. If the parties to a will challenge agree that disclosure and discovery should occur, is it nevertheless necessary for the challenger to satisfy the minimal evidentiary threshold?
While this issue has not been addressed extensively, Ontario case law indicates that consent cannot usurp the court’s supervisory role in probate proceedings. This issue was expressly addressed by Justice Myers in Seepa v Seepa, 2017 ONSC 5368. Since the estate trustee in this case consented to disclosure sought by the will challenger, the parties presented a consent order to the court. However, Justice Myers required the matter to be argued in order to determine whether the will challenge satisfied the minimal evidentiary threshold.
With respect to the parties’ consent, Justice Myers expressly held:
… I do not view the parties’ consent as binding upon the court. … this is to some degree a court-driven inquisitorial, in rem process. The court’s discretion is exercised for all affected persons and with the testator’s intentions in mind. The parties are not the only people involved therefore and their consent cannot compel the court to exercise discretion.
That does not mean, however, that the parties’ agreement is irrelevant. Justice Myers went on to observe that where both parties consent to the relief sought, “their consent should be a very significant factor and should be departed from only where the parties failed to recognize or give sufficient heed to the goals of the civil justice system or for other good, articulable reasons.”
The requested relief was ultimately granted in Seepa. Among other considerations, the will challenger agreed to bear the cost of the investigative steps and record production, subject to the court’s final assessment of costs. Justice Myers considered this arrangement relevant to both affordability and proportionality.
Since Justice Myers decided Seepa, his analysis was largely approved by the Ontario Court of Appeal in Johnson v Johnson, 2022 ONCA 682, although the Court of Appeal did not expressly address the effect of consent at the minimal evidentiary threshold.
Practical Implications for Ontario Counsel
Unlike the result in Simmons v Sinclair,in Ontario, the parties’ consent is not, by itself, a complete answer to the minimal evidentiary threshold. The court retains an independent supervisory role and is not compelled to grant disclosure or other procedural relief simply because the litigants have agreed to it, although their consent will be relevant.
Accordingly, where an estate trustee agrees that disclosure should be provided to a will challenger, that agreement should be clearly identified in the motion materials. The challenger will still need to provide an evidentiary basis for the challenge and satisfy the court that the proposed process is justified, but the parties’ agreement may impact how the court exercises its discretion. In particular, the court may be more inclined to order document discovery where the parties can demonstrate that their proposed procedure is focused and proportionate, that it will not unnecessarily deplete estate assets, or that arrangements have been made to minimize the financial burden on the estate.
Thank you for reading, and have a great week!
Ian.