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Entitlement to Proof of a Will in Solemn Form

Disappointed beneficiaries often seek to have a will proved in solemn form, but the evidence they adduce in support of the application is usually flimsy and deficient. If the court were to grant such an application, the applicant will typically go on a lengthy fishing expedition at great expense to the estate and that will delay administration of the estate significantly. Such costly fishing expeditions are of concern especially in modest estates, as they can quickly deplete the estate. This caused Myers J. to exclaim in Seepa v. Seepa[1] that perhaps it is time for a ‘culture shift’.

In fact, a beneficiary does not have a right to have a will proved in solemn form. The Rules provide a clear answer on this point. Rule 75.01 of the Rules of Civil Procedure[2] provides:

An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

Rule 75/06(1) provides:

Any person who appears to have a financial interest in an estate may apply for directions in another proceeding under this Rule, as to the procedure for bringing any matter before the court.

And Rule 75.06(3) provides:

On an application for directions, the court may direct… (emphasis supplied).

and that is followed by a list of seven directions that the court may make.

In Neuberger Estate v. York,[3] Gillese J.A. reviewed the effect of these rules and held that an interested person does not have a right to require proof in solemn form.[4]

Another relevant rule is Rule 38.10(1)(a), which provides that on the hearing of an application the presiding judge may ‘grant the relief sought or dismiss or adjourn the application in whole or in part and with or without terms’.

For one thing, the applicant must adduce at least some evidence in support of her allegations that the will is void. In Neuberger Justice Gillese went on to say:

In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.[5]

Moreover, failure on the part of a disgruntled beneficiary to adduce supporting evidence may lead the court to grant summary judgment dismissing the action.[6]

These issues were raised again in a recent case, Younge v. Prychitko,[7] in which George J. reviewed the law I have summarized above.

The testator was predeceased by his wife, who died in 2015, and was survived by his two children, Shawn and Keri. By a will in 2016 he directed that his home be transferred to Shawn and Keri as joint tenants, gave $10,000 to each of his four grandchildren, and left the residue to Shawn. In a later will in 2020, made about three weeks before he died, he left his home to Shawn, $25,000 to each of his grandchildren, $50,000 to Keri, automobiles to a friend, and the residue to Shawn. Both wills appointed Shawn as his executor. The estate was worth approximately $500,000.

Keri filed a notice of objection to the 2020 will, alleging that the deceased lacked capacity and was subjected to undue influence. Shawn applied for an order for directions and his appointment as Estate Trustee. Keri then moved for directions in that application in which she sought production of solicitor and client, financial, banking. and medical records, as well as tax returns and an opportunity to examine non-parties.

The evidence showed that Keri had little contact with her parents before her mother died and had not seen her father since then, whereas Shawn had regular contact with his father. In the evidence Kerri submitted by affidavit she made a number of allegations about the testator’s alcoholism and psychological problems which would have compromised his capacity to make the wills. She also alleged that he was undoubtedly subjected to undue influence by Shawn. In reviewing the evidence, Justice George concluded that Keri failed to present any evidence to support her allegations, many of which were based on hearsay or were dated. For that reason he concluded that at this stage he ought not to order production of all the records sought be Keri, since that would countenance a fishing expedition. Thus, her evidence did not meet the minimal threshold to support an order requiring proof in solemn form.

Interestingly, Shawn did not demand that Keri’s request for production be denied at this stage, but that she be given opportunity to file further evidence to meet the evidentiary threshold, while also permitting Shawn to answer any evidence she might produce and to cross-examine her. Accordingly, the court granted an order along those lines.

Perhaps Shawn and the court were excessively lenient in this case, since the evidence produced so far fell far short of the minimal threshold. On the other hand, giving the disaffected party further opportunity to meet that threshold may serve to promote peace and restore familial relations. And that is surely a desirable objective.

[1]    2017 ONSC 5368, para. 4.

[2]    R.R.O. 1990, Reg. 194.

[3]    2016 ONCA 191.

[4]    Ibid., paras. 86-89, 91.

[5]    Ibid., para. 88.

[6]    See, e.g., Smith Estate v. Rotstein, 2010 ONSC 2117, affirmed 2011 ONCA 491, leave to appeal to the Supreme Court refused 2012 CarswellOnt 1522.; Travica v. Mailloux, 2008 CarswellOnt 5834, affirmed 2009 ONCA 279.

[7]    2021 ONSC 3150.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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