A lawyer was sued for negligence in allegedly failing to ensure that a will was not procured by undue influence or as a result of the testator’s lack of testamentary capacity. On examination for discovery, the lawyer was asked to advise as to texts or other secondary sources that the lawyer regarded as authoritative regarding the drafting of wills, and to advise as to whether the lawyer was aware of any cases (primary sources) that indicated that the lawyer was not required to document evidence of testamentary capacity.

The lawyer refused to answer those questions. The plaintiff brought a motion to compel the lawyer to answer. Must the lawyer answer those questions?

In Marshall v. Jackson, the motions master ordered the lawyer to answer the questions. On appeal, reported at  2021 ONSC 2361, the court held that the questions need not be answered.

The appeal judge held that it was trite law that a party cannot function as his or her own expert. By ordering the questions to be answered, the master in effect required a fact witness to research and deliver a legal opinion, which was contrary to a first principle of the law of evidence. Citing the Supreme Court of Canada, the appeal judge stated that “it is for the [trier of fact] to form opinions, and draw inferences and conclusions, and not for the witness”. The questions, it was held, went beyond asking the defendant for his or her general understanding of the steps he or she should have taken to ascertain testamentary capacity, but required that the lawyer research primary and secondary sources of law in an effort to provide support for legal reasoning going to the standard of care.

A third question was also refused: whether the defendant “understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity”.  The defendant submitted that the question was too broad to be answerable. Would “all available means” include hiring a team of psychiatrists to evaluate the testator’s capacity? The appeal judge held that while the defendant’s counsel may have a point, the fact that the question was excessively broad did not make it unanswerable. “Indeed, the very absurdity of the literal meaning of the question makes it an easy one to answer.” Presumably, the answer will be “No”.

Next question, counsel?

Thank you for reading.

Paul Trudelle