To proceed with a will challenge in Ontario, an applicant must satisfy the minimal evidentiary threshold, a bar that was first set by the Court of Appeal in Neuberger v. York, 2016 ONCA 191 and requires an applicant “to adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded.”
There are a number of decisions interpreting the minimal evidentiary threshold, one of the most recent being Dinally v. Dinally, 2023 ONSC 6178. Justice Meyers pays particular attention in this case to the type of evidence needed to surmount the threshold. Noting that such motions “almost always [turn] on the concept of relevance,” Justice Myers explains that only a few key pieces of evidence are needed to satisfy the threshold, and that such evidence ought to be objective and corroborated, pertaining specifically to relevant events around the time of the challenged will. The court can then use the relevant evidence to make inferences about the facts.
The minimal evidentiary threshold was met in this case on both grounds used to challenge the testator’s final will – lack of testamentary capacity and undue influence. By way of background, the testator changed his will less than six months before he died, disinheriting his son and leaving the entire estate to his daughter, who had been living with the testator for over 20 years. In his previous will, the testator left his estate to his children equally.
Over a year prior to changing his will, the testator also began to take steps to change ownership of his home. He initially met with the family’s long-time lawyer to transfer the home to the daughter. However, the lawyer refused the retainer, as he did not believe that the transfer reflected the wishes of the testator and his late wife. The daughter subsequently retained another lawyer to transfer ownership of the home into joint tenancy with her. Not only did the daughter retain the second lawyer, but she also remained in the room when the testator met with counsel and provided instruction. A few weeks later, however, the father’s testamentary intention changed, and he severed the joint tenancy, so that his share of the home would be divided equally between the son and daughter under his previous will.
Approximately a year later, the testator changed his will, after the daughter deprived him of his phone, TV and walks outside. His medical records around that time also noted that the testator told his doctor that his daughter was controlling his life and that he was unable to argue with her.
The minimal evidentiary threshold was satisfied in light of the facts described above, which the court noted were not readily disputed. Justice Myers also allowed the will challenge to proceed because a number of risk factors for undue influence were in play.
Not only is the court’s decision in Dinally helpful in describing what makes evidence relevant for the purposes of satisfying the minimal evidentiary threshold, but it also addresses the kind of evidence that is not useful. Justice Myers specifically notes that evidence in the form of “subjective speculations” likely will not be helpful if its relevance is dependent on the court accepting a predisposition that the respondent is a wrongdoer, and that a lengthy historical litany of events “that can only be relevant when accompanied by purely speculative assumptions” also will not satisfy the threshold. Justice Myers further notes that:
… lengthy affidavits chock-full of historic lamentations, nasty allegations, innuendo, subjective assumptions of wrongdoing, and speculation are just indications in themselves that the applicant does not have much of a case.
Before adducing evidence in support of a will challenge, Justice Myers suggests that “one should ask whether the proposed piece of evidence makes a fact (including animus) more or less likely if not accompanied by an unproven or subjective assumption.”
Thank you for reading, and have a great day,