In Ontario, persons who appear to have a financial interest in an estate is entitled to seek orders for assistance under Rule 74.15 and for directions under Rule 75.06 of the Rules of Civil Procedure. Section 23 of the Estates Act similarly provides that where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will , “…all persons having or pretending to have an interest in the property affected by the will may … be summoned to see the proceeding and may be permitted to become parties…”
The term “financial interest” is not defined in the Rules or the Estates Act. This issue has been explored in a number of recent cases, including Jafari v. Attar-Jafari1, Korsten v. Lovett2, and McLaughlin v. McLaughlin3. These decisions draw on and apply the principles laid down in Smith v. Vance4.
McLaughlin v. McLaughlin is a case dealing, in part, with the interpretation of the term “financial interest”. The Honourable Justice Price of the Superior Court cited the following principles from Smith v. Vance with approval:
- Financial interest is not defined in the Rules. In the absence of any limiting definition, those words must be taken in their natural meaning of an interest by way of money or other assets having monetary value;
- A person who “pretends” to have an interest under section 23 of the Estates Act is not required to prove that he or she has a financial interest before being permitted to become a party under section 23 of the Estates Act; and
- That being said, the claimant must do more than simply assert an interest. He or she must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. It need not be conclusive evidence at this stage but must be evidence capable of supporting an inference that the claim is one that should be heard.
The court in McLaughlin v. McLaughlin also noted that a financial interest includes an interest derived from intestacy and that being a child of the testator on its own is not enough to pass the threshold.
There remains flexibility in the case law as to what constitutes financial interest in an estate. In this manner legal recourse, under the Rules and the Estates Act, is still available to persons whose interests are not as obvious as those who are named beneficiaries in a will or on an intestacy. At the same time, claimants must be aware that the interest must be genuine and should expect that, when called upon to produce substantiating evidence, the process of proving that interest may not be a walk in the park.
1. 2008CarsllOnt 4488 (Ont. S.C.J.)
2. 2002 CarswellOnt 3665 (Ont. S.C.J.)
3. 2015 ONSC 3491
4. 1997 CarswellOnt 1554