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A recent decision of the Ontario Superior Court of Justice in Young v Prychitko, 2022 ONSC 1502, signals a slight shift in the analysis of whether a litigant in a Will Challenge application has a right to request that a Will be proved in solemn form and to seek production of relevant third-party records in the course of litigation.

In Young, the Deceased’s daughter filed a notice of objection to the issuance of a certificate of appointment of estate trustee to her brother, the named estate trustee, in the Deceased’s Will.  Both parties brought competing motions for directions – the son sought to set aside the notice of objection and proceed with his appointment as estate trustee, while the daughter challenged the validity of the Will and sought production of relevant third-party disclosure including medical, legal, and financial records.

In an earlier decision released in 2021, the Court declined to order production of third-party records as it held that the daughter had not met the minimal evidentiary threshold required to move forward with a Will Challenge. The minimal evidentiary threshold principle provides that, in a Will Challenge application, the challenger must lead some minimal evidence in support of the claims raised in challenging the validity of a Will before the application will be permitted to proceed so as to avoid the unnecessary time and expense to the Estate in defending potentially meritless claims.

In the 2021 decision, the Court held that the daughter’s evidence was insufficient to meet this threshold as it consisted largely of information that was conveyed to by third parties and otherwise made allegations of incapacity and undue influence without any evidence in support of those allegations.  However, the Court permitted the daughter to file further evidence in an effort to meet that minimal threshold.

In the 2022 decision, the Court considered whether the additional evidence introduced by the daughter satisfied the minimal evidentiary threshold.  However, the analysis undertaken by the Court in this decision differed from the analysis performed in the 2021 decision. 

In the ordinary course, the analysis of whether the challenging party meets the minimal evidentiary threshold to move forward with a Will Challenge would be performed prior to the exploration of the merits of that Will Challenge.  Typically, this analysis considers the nature and extent of the evidence led to determine whether the minimal evidentiary threshold has been met.

The Court went further than that in the 2022 decision when it considered the additional evidence adduced by the daughter when it considered not only the nature and extent of the evidence, but also examined it in the context of the grounds to challenge the validity of a Will.

Although the Court cited the leading decisions on the question of the minimal evidentiary threshold in Neuberger Estate v York and Seepa v Seepa, those decisions only considered the evidence of the challenger in the context of the minimal evidentiary threshold.  They did not consider that evidence in the context of the claims being asserted.

The analysis in Young v Prychitko constitutes a slight departure from the established authorities, and it is unclear whether the decision will mark a shift in the analysis of the minimal evidentiary threshold – specifically, whether the evidence in question will be considered in the context of the relevant legal tests in a Will Challenge application if only on a preliminary basis.

As a Court of Appeal decision, the Neuberger decision continues to be the leading authority on the subject, and no substantive analysis on the merits was performed in that decision.  It is expected that Neuberger will continue to be the relevant authority in this subject.  More likely, the Court in Young v Prychitko simply performed the additional analysis as it had already previously ruled against the daughter with respect to the minimal evidentiary threshold.


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