Insight from judges is invaluable when it comes to effective trial advocacy. In the sixth and final session of the OBA Trusts and Estates section’s series of CPD programs dealing with Will challenges, three judges of the Ontario Superior Court of Justice, namely the Honourable Justice Judy Fowler Byrne, the Honourable Justice Dale Fitzpatrick, and the Honourable Justice Laurence A. Pattillo, provided their perspectives on some key themes. While the judges’ perspectives varied, this final article in the series covering the Will challenge programs will summarize the primary insights shared.
Application or Action
Applications can be problematic in Will challenge proceedings because there tend to be issues of credibility to resolve, which requires the procedural framework of an action. An application may be the simplest option, and, at the outset, it may be preferable because it is so streamlined. However, the matter will likely come to a crossroads at some point and be converted to an action.
The “Kitchen Sink” Approach to a Claim
It often makes sense at the outset that lawyers include all possible grounds for a Will challenge in the application. However, by the time it comes to the trial, counsel should confirm which issues their client seeks to pursue at trial. If lawyers continue with allegations that have no merit, it becomes a waste of time. Determining what issues have merit and should be pursued, will depend on the strength of the evidence.
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