The recent endorsement in White v. White demonstrates the continued prevalence of the minimal evidentiary threshold in estates matters.
The Applicant and son of the deceased, Thomas White, brought an application for directions under rule 75.06 allowing him to compel the production of the file for the lawyer who drafted his mother’s 2014 will. The will left 10% of the estate to him in a trust, with the other 90% going to his brother.
Curiously, the Applicant didn’t oppose the probating of the 2014 will by filing a Notice of Objection, nor was he requesting the will to be proven in solemn form.
The Applicant adduced evidence that his mother had for some weeks prior to experiencing a stroke been trying to revise her will such that a trust company was to be appointed as the trustee of his trust. When the lawyer came to visit the deceased at the hospital, the deceased had decided she was not up to it. She ultimately passed away without revising her will.
The Applicant argued that the draft will being contemplated by the deceased could express an intention to revoke her prior will. Justice Myers was dubious of this argument, quoting the recent decision in Cruz v Public Guardian and Trustee, 2023 ONSC 3629 (CanLII) argued by our very own David Morgan Smith. However, the decision for Justice Myers was whether the Applicant was entitled to the production of the lawyer’s file. Interestingly, neither LawPRO nor counsel for the estate trustee opposed the order sought.
Ultimately, Justice Myers was left with more questions than answers and the matter was adjourned to another day. It was unclear whether the minimal evidentiary threshold applies in cases under s. 21.1 of the Succession Law Reform Actor s. 9 of the Estates Act. Another problem was the fact that section 21.1 was not plead, but only advanced as a possible cause of action.
In my view, the same analysis that was applied with respect to the Substitute Decisions Act in McCormick v. McCormick may be applicable here. The purpose given for the minimum evidentiary threshold test was to protect estates from needless expense and litigation. Justice Wilcox describes as not appearing to be “a very high bar” due to the preliminary stage in which it is engaged. Such principles may be at play here.
This matter serves as a cautionary tale that, just like in Seepa v. Seepa, the court is not going to proceed with an order simply because it is being made on consent. It is critical to develop a cause of action and build the evidentiary record such that the necessary productions can be obtained.
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