It has been over two years since the Ontario Court of Appeal released their decision in Neuberger Estate v. York 2016 ONCA 191 suggesting that a party challenging a will must meet a minimal evidentiary threshold before the court should accede to a request that the will be proven in open court.
It has been over six months since Justice F.L. Myers considered the Neuberger decision in Seepa v. Seepa 2017 ONSC 5368 and declared that Reshma Kishnani a culture shift was required in the estates bar and warned that courts should be cautious to ensure there existed a minimal evidentiary threshold before allowing a will challenge to proceed.
The recently released decision of Justice Laurence Pattillo in Martin v. Martin  ONSC 1840, is the first decision, hopefully of several, to assist counsel to determine just what a minimal evidentiary threshold would entail.
Prior to Neuberger, it had generally been assumed that there was an automatic right for a disappointed beneficiary to require a will to be proven in open court. Justice Donald Taliano in Stefanik v. Stefanik  O.J. 3279 wrote that the law was “well settled” that a next-of-kin would, as of right, be entitled to have a will proven in solemn form.
Justice Taliano noted that a disappointed beneficiary was entitled to be assured by sworn evidence that the document they were questioning reflected the true will of the testator and that the testator had testamentary capacity when he or she signed the will. This would be particularly so when the objector could reasonably have expected to benefit from a will, only to find that they were excluded.
The Court of Appeal considered Stefanik in the Neuberger decision but found that the comments of Justice Taliano with respect to a “right” to challenge a will were only a presumption and that the “right” must be tempered by consideration of the wording of Rule 75.06 (3) which provides that a court “may” direct the issues to be decided in a will challenge. The court in Neuberger found that the Rules of Civil Procedure do not “require” such a direction.
Justice Myers in the Seepa decision was concerned with respect to the privacy rights of the deceased whose solicitor’s file and whose medical records are typically sought to be obtained. It is submitted however, this concern must be weighed against the rights of a disappointed beneficiary, or indeed any litigant, to proper documentary discovery so that the issues raised in a proceeding may be determined in a just and expeditious manner on all available evidence.
Justice Pattillo in the Martin matter was asked to find that a lower evidentiary threshold should be required to justify an order for production than would be required to justify a trial of issues.
In the Martin estate the appointed estate trustee brought a motion requiring the respondent, his sister, to meet a minimal evidentiary threshold to allow her will challenge to proceed. The estate trustee, however, objected to the production of a solicitor’s file or medical records that could contain that evidence.
The respondent argued that she should be entitled to production of the solicitor’s will file and the deceased’s medical records to assist in determining whether her allegations of undue influence and lack of testamentary capacity could be sustained. She filed affidavit evidence from her sister and a housekeeper which spoke to efforts that her brother had made to influence the making of her mother’s wills.
Justice Pattillo held that the level of evidence required to justify an order for documentary disclosure should be “more than just suspicion” and that the respondent had met that threshold. Production of the will files and the medical records was ordered.
Justice Myers in Seepa invited judges considering will challenges to issue directions which would promote efficiency and proportionality, using the various tools that are available in the Rules to shape a proceeding. An Order for Directions which provides for disclosure and mediation and then requires the parties to re-attend to argue as to whether a minimal evidentiary threshold has been met to justify a trial could meet the requirements of Neuberger.
The concern of the estates bar is that any decision which sets the minimal evidentiary threshold bar too high would only invite costly interim proceedings as named estate trustees attempt to cut off potential challengers by denying them the normal tools of documentary discovery which could assist them in properly evaluating their claims. Justice Pattillo described the “more than just suspicion” threshold as a low bar, which is appropriate for this early stage of the proceeding.
Richard Worsfold is counsel and Reshma Kishnani is an associate practising estate litigation at Mills & Mills LLP, a full service firm with an emphasis on estate matters. Richard Worsfold acted for the respondent in Martin v. Martin.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.