Tag: evidentiary threshold
Earlier this year, the Court of Queen’s Bench of Alberta directed that a party challenging a will may be able to obtain orders for disclosure before the Court determines whether the will must be proven in solemn form.
This case may be of interest in Ontario because the procedure for commencing a will challenge in Alberta and Ontario is relatively similar. If a party in either province wishes to challenge a will, that party must establish an evidentiary basis for doing so before a hearing will be ordered. In Ontario, the requirement to provide a “minimal evidentiary threshold” before a will must be proven in solemn form was reiterated by the Court of Appeal in Neuberger v. York, 2016 ONCA 191 (CanLII). The standard is worded differently in Alberta, where applicants must provide an evidentiary foundation to confirm that there is a “genuine issue to be tried” before the hearing of a will challenge will be ordered: see Quaintance v Quaintance (Estate), 2006 ABCA 47 (CanLII) and Logan Estate (Re), 2021 ABCA 6 (CanLII).
Evidence a party challenging a will in Alberta may obtain before a hearing is ordered:
In Gow Estate (Re), 2021 ABQB 305 (CanLII), the will dispute was between four of the deceased’s children. Two siblings were serving as the personal representatives of the estate, and two other siblings applied to challenge the deceased’s will on several bases, including undue influence. The personal representatives opposed the applicants’ request that the will be proven in solemn form.
The applicants also applied to the court for interim relief – an order that would permit them to question the personal representatives and obtain documentary disclosure, including the estate solicitors’ files, the deceased’s medical records and driver’s licence documents, previous wills, and other estate planning records, before the “threshold” application was heard. The personal representatives objected to the interim relief sought by the applicants on the basis that Alberta’s Surrogate Rules did not permit pre-application discovery and also argued that the testator’s privacy was to be respected unless the applicants proved that formal proof of the will was warranted in the circumstances.
Before the interim application was heard, the personal representatives also provided the applicant siblings with partial disclosure relating to the testator’s health, testamentary capacity and intentions, and estate planning, and also examined one of the applicant siblings in anticipation of the threshold application.
The interim application was heard by Justice Feth, who permitted both questioning and limited documentary disclosure, recognizing “the importance of early disclosure in surrogate disputes”. With respect to questioning, the Court confirmed that the personal representatives could be questioned “about their personal interactions with the testator during his lifetime, including their observations of his mental capacity and their involvement in his testamentary decision-making.” Justice Feth explained:
 Access to pre-application questioning advances procedural fairness since the Applicants are obligated to meet an evidentiary burden and obtain corroboration through material evidence from other sources. In meeting their onus, measured litigation procedures should not be foreclosed to them.
 Immunizing an adverse party from questioning is especially concerning when undue influence is raised. The living witness who is likely the most knowledgeable about the interactions with the testator would be hidden from the Court.
Justice Feth also observed that it would not be fair to permit the threshold application to be heard by the Court with only partial disclosure selected entirely by the personal representatives because of the potential for “a misleading presentation of the facts”.
Limited documentary disclosure of some of the deceased’s medical records and previous wills was also ordered in light of the partial disclosure already provided by the personal representatives. While Justice Feth acknowledged that individuals may have a significant privacy interest in their medical records, it was also recognized that such a privacy interest is not absolute and ordered the personal representatives to provide the applicant siblings with disclosure for the period during which the deceased’s testamentary capacity was in question.
Justice Feth acknowledged the potential for “[c]oncerns about fishing expeditions, the testator’s privacy interests, and excessive delay and expense occasioned by exuberant demands for disclosure” during the early stages of estate litigation, but held that those concerns could be managed by the Court rather than prohibiting early disclosure in surrogate proceedings.
Evidence a party challenging a will in Ontario may obtain before a hearing is ordered:
In comparison to Justice Feth’s decision, Ontario courts have in some recent instances been reluctant to provide documentary disclosure in will challenges during the preliminary stages of the litigation. In Seepa v Seepa, 2017 ONSC 5368 (CanLII), Justice Myers held that documentary disclosure should not occur until after a threshold will application has been granted. Recently, in McCormick v McCormick, 2021 ONSC 5177 (CanLII), Justice Wilcox described Justice Myers’ decision as follows:
 In Seepa, Meyers J. expanded on the policy considerations behind the minimum evidentiary threshold requirement. It was to protect from lengthy, intrusive, expensive documentary collection and investigation proceedings untailored to the needs of the individual case and from intrusion into a deceased’s privileged legal files and personal medical records. In the face of these, a litigant was not to be given tools such as documentary discovery that are otherwise ordinarily available to a civil litigant before the litigant has produced some evidentiary basis to proceed.
In keeping with the Court’s decision in Seepa, in Young v Prychitko, 2021 ONSC 3150 (CanLII), Justice George declined to order documentary disclosure in the context of a will challenge, holding that the Court would not entertain a fishing expedition and compel production of documents before the minimal evidentiary threshold had been met. The firm’s blog post about the Court’s decision in Young v Prychitko can be accessed here.
While document disclosure prior to a threshold application may have recently been discouraged, some Ontario decisions have instead permitted cross-examination on affidavit evidence as a next step, as noted in Justice Wilcox’s decision in McCormick. The Court even noted in Young v Prychitko that the parties would be able to cross-examine each other on their affidavit evidence before the threshold issue, in that case, was decided.
Having said that, the practice of permitting parties to cross-examine each other on affidavit evidence before documentary disclosure may not always be optimal. In Shapiro v Shapiro, 2021 ONSC 4501 (CanLII), for example, Justice Hurley noted that cross-examination on an affidavit before documentary discovery in that particular case was “unlikely to accomplish anything of real benefit” and likely “would only add to the legal costs and beget delay” – the very danger that Justice Myers indicated the minimum evidentiary threshold requirement was intended to avoid. The will threshold application was determined in Shapiro without any cross-examination.
In light of these recent decisions by Ontario and Alberta Courts in which we have seen two conflicting approaches in the disclosure of medical records and other documentary disclosure, the minimal evidentiary threshold issue should remain top of mind to lawyers assisting clients with the early steps of a will challenge.
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For further reading on threshold will challenges and the evidentiary burden, check out these other blog posts:
When a deceased’s capacity is called into question, medical and legal records are generally a key source of evidence. Having said that, courts will not allow parties to go on a “fishing expedition” with respect to production orders. This issue was recently considered in the case of Young v. Prychitko, 2021 ONSC 3150.
In this decision, the deceased executed his last Will on September 2, 2020 (the “2020 Will“), which provided for the majority of his estate, totalling approximately $500,000, to be distributed to his son, the applicant in the proceeding. The deceased’s daughter, the respondent, filed a Notice of Objection to the 2020 Will, alleging that the deceased lacked capacity and was subject to undue influence at the time of execution. Accordingly, the respondent sought an order for the production of the deceased’s testamentary documents, including his medical, financial and legal records. The applicant argued that the respondent failed to meet the evidentiary threshold to require the production of the aforementioned documents and, as a result, his position was that the order would be premature. Having said that, the applicant’s proposed timetable afforded the respondent with the opportunity to file further evidence in support of her objection at a later time.
In its decision, the court held that, prior to compelling the production of certain documents, it must be satisfied that the evidentiary threshold has been met. This minimal evidentiary threshold, as discussed in Neuberger Estate v. York, 2016 ONCA 191, protects against needless expense and litigation. This is particularly important in the case of small estates, as the costs involved in seeking productions may be disproportionate to the size of the estate. In its analysis, the court considered the following questions:
1) When can someone with an interest in an estate compel the propounder of the Will to prove it in solemn form?
2) How does someone satisfy the above test?
3) If the test is not yet met, what procedure should be followed moving forward?
The court stressed that simply alleging incapacity or undue influence is not enough. Even if there is some evidence to support this point, the court must assess whether the propounder can sufficiently answer the evidence.
In the end, the court held that the respondent’s evidentiary record was insufficient. As such, compelling the production of medical, legal, and financial records at this early stage was determined to be premature and would ultimately be “countenancing a fishing expedition.” The course proposed by the applicant was held to be the most prudent.
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Suzana Popovic-Montag & Tori Joseph
Under Rules 75.01 and 75.06 of the Rules of Civil Procedure, any person who has a financial interest in an estate may commence an application to have a will “proved in such manner as the court directs.” In Neuberger Estate v York, 2016 ONCA 191, the Ontario Court of Appeal clarified that the court has a discretion whether to order that a testamentary instrument be proved. The Court went on to state that Rule 75.06 requires a moving party to “adduce, or point to, some evidence which if accepted, would call into question the validity of the testamentary instrument that is being propounded.”
In Joma v Jaunkalns, 2019 ONSC 6788, the Ontario Superior Court of Justice considered the principles mentioned in Neuberger Estate v York. In doing so, the case provides a helpful review regarding the minimum evidentiary threshold to permit a will challenge.
In Joma v Jaunkalns, the deceased, Zenta Palma, died in September of 2018. She was a widow and did not have any children. Zenta’s siblings and only niece, Brigita, predeceased her.
The Deceased was survived by Brigita’s brother, Ronald. She was also survived by Brigita’s husband, Robert, and their children, Michael and Emily.
In 2012, the Deceased executed a Will naming Robert as her estate trustee and Michael and Emily as the residual beneficiaries. Robert’s brother, Viktor, was named as the alternate estate trustee and his children were named as legatees.
Ronald claimed that he was named as a residual beneficiary under an earlier Will but the Will could not be located.
Ronald asserted that, at the time the Deceased executed the 2012 Will, she lacked testamentary capacity and was unduly influenced by Robert. The question before the court was whether Ronald met the required threshold to be granted his request for the 2012 Will to be proven.
Upon considering the evidence of Ronald and Robert, Justice Dietrich found that Ronald did meet the threshold. She arrived at this conclusion based on the following:
- The Deceased was an 84-year old widow who was reliant on her two sisters and her niece and nephew for support and assistance;
- In 2011, the Deceased was taking prescribed medication that would “tranquilize” her;
- The Deceased was taking anti–anxiety medication approximately one month before she executed the 2012 Will;
- Robert’s evidence that the Deceased never had any cognitive impairment was found to be a broad conclusory statement;
- Robert was a physician with experience assessing capacity but he did not offer any evidence of having examined the Deceased or knowing exactly what medication she was taking and in what dosage;
- Ronald’s evidence of Robert’s involvement in the Deceased’s finances raised the spectre of Robert’s potential undue influence over the Deceased;
- For example, Robert undertook a banking transaction on behalf of the Deceased which had upset her so she asked Robert to reverse it.
Based on the evidence above, Justice Dietrich found that Ronald’s evidence amounted to more than suspicion. If accepted, it would call the validity of the Deceased’s Will into question.
Furthermore, a review of the Deceased’s financial records, medical records and the drafting solicitor’s file would be beneficial. Quoting from Seepa v. Seepa, 2017 ONSC 5368, Justice Dietrich went on to state that Ronald “ought to be given the tools such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.”
In summary, Joma v Jaunkalns demonstrates that the evidentiary burden on a party who wishes to challenge a will is not fairly high. Evidence that amounts to more than a suspicion should suffice.
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Ian Hull and Celine Dookie
For further reading on this topic, check out these other blogs: