Enlisting the Court's Gatekeeping Function: Threshold Motions in Will Challenges

Approximately $1 trillion in personal wealth will be transferred from one generation to the next in Canada between 2016 and 2026.[1] This represents the largest transfer of wealth in Canadian history. Not surprisingly, this has led to an onslaught of Will challenges and disputes related to estates both large and small. To stem the tide, Courts have exercised a gatekeeping function in an attempt to weed out meritless claims.

The Ontario Court of Appeal in Neuberger Estate v. York[2] elucidated that a person who appears to have a financial interest in an estate must meet some minimal evidentiary threshold before a Court will accede to a request that a testamentary instrument be proven.[3] In turn, when faced with a Will challenge, the propounder of a Will must ask: has the Will challenger put forward sufficient evidence to dispute the validity of the Will? If not, is it possible to engage the Court’s gatekeeping function to dismiss the case at an early stage?

In the 2017 Ontario Superior Court of Justice decision of Seepa v. Seepa,[4] Justice Myers addressed the “minimal evidentiary threshold” from a practical perspective, holding that the Court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the propounder of the Will and assess what, if any, processes are required to resolve any conflicts that the Court cannot fairly resolve on the record before it.[5] At this preliminary stage, the issue is not whether the challengers have proven their case but rather whether they ought to be given the tools ordinarily available to a litigant, such as documentary discovery, before they are required to put their best foot forward on the merits.[6]

Two recent cases out of the Ontario Superior Court of Justice, Johnson v. Johnson[7] and Morrish et al. v. Katona et al.[8] exemplify how the Courts are approaching the minimum evidentiary threshold issue and why marshalling the proper evidence on a threshold motion is so important. In Johnson, the evidence advanced by the propounder was sufficient to prevent the Will challenger from proceeding with the application and in Morrish the evidence fell short. What distinguished the two cases was the nature of the evidence being marshalled by both sides and whether that evidence was sufficient for the Court to make a finding on the record before it, without proceeding with the ordinary course of litigation, which was both expensive and time consuming.   

In Johnson, Justice Williams dismissed an application challenging a Will and seeking disclosure of medical, financial and solicitor notes and records. There, the deceased testator disinherited one of her children in her Last Will and Testament and, in advancing the Will challenge, the disinherited daughter claimed that there was no reasonable explanation for the change in the testator’s Will, that the testator lacked capacity to execute the Will, and that the Will was made under suspicious circumstances. However, affidavits filed by the testator’s estate trustee and a lawyer who had represented the testator in prior litigation against the daughter demonstrated that the testator’s decision to disinherit her daughter was entirely explicable. The decision to disinherit was related to the daughter’s mismanagement of the mother’s funds while acting as her attorney for property years prior, which ultimately led to a Court application seeking her removal. As it related to capacity, the Court accepted the evidence of the testator’s lawyer of over 40 years. His evidence addressed both the testator’s falling out with her daughter and the fact that he would have been attuned to any lack of capacity issues, of which there were none, at the time of the Will instruction and execution. The Court further found that there was no evidence of undue influence present in this case. Ultimately, the Court held that the testator’s estate should not be put to further expense or delay as a result of the issues raised by the daughter as the issues had been satisfactorily answered.

In Morrish, the Court decided that the Will challengers had met the evidentiary threshold necessary to call into question the validity of the Will being challenged therein. There, the testator’s nieces, who were the sole residual beneficiaries under a prior Will of the deceased, sought to challenge the testator’s last Will which provided for minor specific bequests to them. Under the Will being challenged, the testator’s neighbour and long-time friend was the residual beneficiary. The nieces alleged a lack of capacity and undue influence by the neighbour. They put forward evidence regarding the testator’s hospitalization on several occasions in the year leading up to the execution of the last Will which raised questions about the testator’s diminished capacity. Ultimately, notwithstanding the evidence advanced by the neighbour that the testator continued to manage her own finances two years after signing the last Will, the Court held that the nieces had met the minimal evidentiary threshold by adducing “some evidence” to call into question the capacity of the testator and in turn the validity of the last Will. In addition, the Court found that although the testator did not need to have a reason to change her intended beneficiaries (assuming she had capacity), there was very little evidence of a strained relationship between the testator and the nieces that would support a rationale for the drastic departure in the testator’s intentions. In the circumstances of this case, Justice Nieckarz found there were sufficient grounds for concern about the validity of the last Will that could not be properly determined in a summary fashion or without the benefit of further investigation into the documentary and oral discovery process.

Counsel should consider these threshold motions as a useful and practical tool to prevent meritless “fishing expeditions” when the case warrants it, as a way to protect the estate and its beneficiaries from unnecessary costs. Rather than accepting a Will challenge and consenting to an Order Giving Directions, which typically permit disclosure requests for medical, financial, or legal records, counsel would be prudent to assess the evidence of the parties at an early stage to determine whether to engage the Court’s gatekeeping function to dismiss the Will challenge at an early stage in the proceeding.  

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.