Much needs to be said about the minimal evidentiary threshold in a will challenge. For hundreds of years, nothing needed to be said, however, now all of a sudden much is being said. The question must be asked, why? If it is to stop bogus or nuisance claims, denying those with a legitimate interest in the face of the role of the court and its responsibility to ensure testamentary intentions are carried out is not the right approach. Most shenanigans with deceased individuals happen in secret, so without an opportunity to look further, nothing will ever get uncovered.
In Neuberger v. York,[1] the Court of Appeal confirmed that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. If the applicant or moving party fails in this regard or if the propounder successfully answers the challenge, the application or motion should be dismissed.[2] Importantly, and properly so, the threshold is low.
Despite a litany of decisions which follow Neuberger, there is inexplicably increasing uncertainty developing as to what will constitute ‘enough’ evidence. More often, now, it is the case that the applicant or moving party fails to meet the threshold based on credibility and/or reliability issues concerning their evidence but inappropriately so, at too early a juncture. Rarely, however, is it the case that the respondent’s own evidence in answering the challenge becomes the evidence relied upon to meet this threshold. That was the case in the recent decision of the Honourable Justice F.L. Myers in Carinci v. Carinci.[3]
Background
The applicant and his mother were estranged and, despite efforts to reconcile when mom was diagnosed with cancer in 2019, never fully resumed communication.
The respondent moved in with her mother as soon as the mother learned of her cancer diagnosis. She lived alone with her mother and swears to have paid all household expenses from her own funds.[4] The respondent was also appointed as the mother’s estate trustee in a will which cut the applicant’s share of the mother’s multi-million-dollar estate from 25 per cent to a specific legacy of $200,000.[5]
The applicant’s evidence
The applicant challenged his mother’s will based almost exclusively on what Justice Myers described as “his own subjective, conclusory evidence to support innuendo and supposition.”[6]
The applicant made broad allegations and similar to the recent decision in Giann v. Giannopoulos,[7] “cherry-picked” specific evidence (in this case, two colorful text messages). He also alleged that his sister, the respondent, interfered with funeral plans for their late sister. Justice Myers held that “[i]f the applicant’s evidence was the only evidence before me, I likely would have dismissed the claim.”[8]
The respondent’s evidence
In her affidavit, the respondent included an exhibit consisting of a video of the will signing ceremony, recorded by the mother’s lawyer.[9] The video shows the mother being audibly coached by someone off screen to say “yes” to one of the lawyer’s questions.[10] The respondent denied she was the mother’s coach in the video, but Justice Myers was of the view that “it could not have been anyone else.”[11] The lawyer stopped and asked if someone was in the room, but continued when the mother said no.[12]
Under cross-examination, the respondent became confused about the details of her mother’s accounts. She undertook to provide better information. In answering her undertakings, she advised there was an additional account she was a joint holder on, which was not disclosed because it was closed prior to the mother’s death. The account contained $500,000. These funds were not in the estate’s account.
Further, on cross-examination the respondent admitted to driving her mother to the bank so that she could be made a joint holder on her mother’s accounts and also, to an investment advisor’s office for the purpose of being designated as beneficiary on mom’s retirement accounts.[13] The respondent also claimed to have no knowledge of the terms on which her mother sold a car to a neighbour, however, she wrote the bill of sale.[14]
Justice Myers’ Analysis
His Honour was of the view that the respondent’s evidence was intended to “create an impression that the mother was independent in caring for her finances,”[15] but that this evidence was inconsistent with her own evidence of opening and paying all of her mother’s bills and mail and inconsistent with common sense.[16]
For Justice Myers, it made no sense why an adult child would move in her mother and start paying utilities and realty tax on her mother’s house with her own funds without reimbursement. Also, His Honour found it concerning that the respondent knew nothing about the $500,000 or the $8,000 in cash received from the sale of a car in which the respondent drafted the bill of sale. His Honour also held that a simple review, requiring no forensic analysis, would show where the $500,000 went, or who paid realty tax on the mother’s house, for example.
Justice Myers further held that “when I add to [the respondent’s] efforts to minimize her involvement in the mother’s financial affairs, her surreptitious presence during the will signing, and her partial disclosure of the lawyer’s file in a motion seeking to preclude disclosure, I am left feeling ill at ease.”[17]
Disposition
The applicant’s own evidence was insufficient to establish the threshold “air of reality” to his claims of incapacity and undue influence. However, the evidence submitted by the respondent, namely, the exhibit to her affidavit (the video) and under cross-examination was sufficient to surmount the Neuberger hurdle.
Justice Myers was also of the view that this was not a case to defer the costs to trial, citing ample objective basis for an order for examination of the lawyers’, doctors’, and bank files visible to all to lead to settlement. The applicant was awarded costs on a partial indemnity basis in the amount of $11,000.
Final Thoughts
The decision in Carinci took a close look at evidence which was held to be contrary to the normal inference that a lawyer in drafting a will, would have properly performed his duties and would not have permitted a client to execute a will if he had any real concerns regarding capacity or undue influence. [18]
In this case, despite trying to help a long-time client, the lawyer’s acceptance of the mother’s assurance that no one was with her when he had clearly just seen and heard her being coached, his leading questions that did not explore either the client’s capacity or her possible exposure to undue influence, and his volunteering of the mother’s privileged material to the respondent, were all viewed as strong evidence contrary to the normal inference.
—
[1] 2016 ONCA 191 [Neuberger].
[2] Neuberger, supra at paras. 88-89.
[3] 2023 ONSC 6094 [Carinci].
[4] In her affidavit, however, the respondent says that a sharing arrangement was reached sometime later, and under cross-examination, she said that she never used her mother’s funds to pay any of their expenses.
[5] The mother told her lawyer that she did this because the applicant had inherited significant funds from the sister who had recently passed and because she felt the applicant hated her.
[6] Carinci, supra at para. 1
[7] 2023 ONSC 5412 [Giann].
[8] Carinci, supra at para. 8.
[9] The lawyer disclosed file documents to the respondent which were used in the proceeding. There was no evidence that the documents disclosed were the lawyer’s entire file.
[10] At approximately the 1:30 mark of the video, the mother is confused and cannot answer the lawyer’s question about whether she had received and read his letters and drafts.
[11] Carinci, supra at para. 22.
[12] The lawyer also went on to ask a series of leading questions about the will, failing to ask any open-ended questions to elicit the mother’s understanding of the extent of her assets and liabilities, and did nothing in the ceremony to indicate that he took any steps at all to inquire about whether the mother was being unduly influenced by the respondent.
[13] Ibid., at para. 28.
[14] She provided that the sale was for $8,000 cash but also, that she had no idea what had become of the cash and that she never looked for it.
[15] Carinci, supra at para. 31.
[16] His Honour at para. 31 held that “it defies credulity that the mother decided independently to have [the respondent] take her to these institutions to greatly benefit [the respondent] and did not tell her or speak about it with her when [the respondent] was managing her affairs.”
[17] Carinci, supra at para. 35.
[18] See Johnson v. Johnson, 2022 ONCA 682 at para. 14 [Johnson].
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Written by: Brett Book
Posted on: November 14, 2023
Categories: Commentary
Much needs to be said about the minimal evidentiary threshold in a will challenge. For hundreds of years, nothing needed to be said, however, now all of a sudden much is being said. The question must be asked, why? If it is to stop bogus or nuisance claims, denying those with a legitimate interest in the face of the role of the court and its responsibility to ensure testamentary intentions are carried out is not the right approach. Most shenanigans with deceased individuals happen in secret, so without an opportunity to look further, nothing will ever get uncovered.
In Neuberger v. York,[1] the Court of Appeal confirmed that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. If the applicant or moving party fails in this regard or if the propounder successfully answers the challenge, the application or motion should be dismissed.[2] Importantly, and properly so, the threshold is low.
Despite a litany of decisions which follow Neuberger, there is inexplicably increasing uncertainty developing as to what will constitute ‘enough’ evidence. More often, now, it is the case that the applicant or moving party fails to meet the threshold based on credibility and/or reliability issues concerning their evidence but inappropriately so, at too early a juncture. Rarely, however, is it the case that the respondent’s own evidence in answering the challenge becomes the evidence relied upon to meet this threshold. That was the case in the recent decision of the Honourable Justice F.L. Myers in Carinci v. Carinci.[3]
Background
The applicant and his mother were estranged and, despite efforts to reconcile when mom was diagnosed with cancer in 2019, never fully resumed communication.
The respondent moved in with her mother as soon as the mother learned of her cancer diagnosis. She lived alone with her mother and swears to have paid all household expenses from her own funds.[4] The respondent was also appointed as the mother’s estate trustee in a will which cut the applicant’s share of the mother’s multi-million-dollar estate from 25 per cent to a specific legacy of $200,000.[5]
The applicant’s evidence
The applicant challenged his mother’s will based almost exclusively on what Justice Myers described as “his own subjective, conclusory evidence to support innuendo and supposition.”[6]
The applicant made broad allegations and similar to the recent decision in Giann v. Giannopoulos,[7] “cherry-picked” specific evidence (in this case, two colorful text messages). He also alleged that his sister, the respondent, interfered with funeral plans for their late sister. Justice Myers held that “[i]f the applicant’s evidence was the only evidence before me, I likely would have dismissed the claim.”[8]
The respondent’s evidence
In her affidavit, the respondent included an exhibit consisting of a video of the will signing ceremony, recorded by the mother’s lawyer.[9] The video shows the mother being audibly coached by someone off screen to say “yes” to one of the lawyer’s questions.[10] The respondent denied she was the mother’s coach in the video, but Justice Myers was of the view that “it could not have been anyone else.”[11] The lawyer stopped and asked if someone was in the room, but continued when the mother said no.[12]
Under cross-examination, the respondent became confused about the details of her mother’s accounts. She undertook to provide better information. In answering her undertakings, she advised there was an additional account she was a joint holder on, which was not disclosed because it was closed prior to the mother’s death. The account contained $500,000. These funds were not in the estate’s account.
Further, on cross-examination the respondent admitted to driving her mother to the bank so that she could be made a joint holder on her mother’s accounts and also, to an investment advisor’s office for the purpose of being designated as beneficiary on mom’s retirement accounts.[13] The respondent also claimed to have no knowledge of the terms on which her mother sold a car to a neighbour, however, she wrote the bill of sale.[14]
Justice Myers’ Analysis
His Honour was of the view that the respondent’s evidence was intended to “create an impression that the mother was independent in caring for her finances,”[15] but that this evidence was inconsistent with her own evidence of opening and paying all of her mother’s bills and mail and inconsistent with common sense.[16]
For Justice Myers, it made no sense why an adult child would move in her mother and start paying utilities and realty tax on her mother’s house with her own funds without reimbursement. Also, His Honour found it concerning that the respondent knew nothing about the $500,000 or the $8,000 in cash received from the sale of a car in which the respondent drafted the bill of sale. His Honour also held that a simple review, requiring no forensic analysis, would show where the $500,000 went, or who paid realty tax on the mother’s house, for example.
Justice Myers further held that “when I add to [the respondent’s] efforts to minimize her involvement in the mother’s financial affairs, her surreptitious presence during the will signing, and her partial disclosure of the lawyer’s file in a motion seeking to preclude disclosure, I am left feeling ill at ease.”[17]
Disposition
The applicant’s own evidence was insufficient to establish the threshold “air of reality” to his claims of incapacity and undue influence. However, the evidence submitted by the respondent, namely, the exhibit to her affidavit (the video) and under cross-examination was sufficient to surmount the Neuberger hurdle.
Justice Myers was also of the view that this was not a case to defer the costs to trial, citing ample objective basis for an order for examination of the lawyers’, doctors’, and bank files visible to all to lead to settlement. The applicant was awarded costs on a partial indemnity basis in the amount of $11,000.
Final Thoughts
The decision in Carinci took a close look at evidence which was held to be contrary to the normal inference that a lawyer in drafting a will, would have properly performed his duties and would not have permitted a client to execute a will if he had any real concerns regarding capacity or undue influence. [18]
In this case, despite trying to help a long-time client, the lawyer’s acceptance of the mother’s assurance that no one was with her when he had clearly just seen and heard her being coached, his leading questions that did not explore either the client’s capacity or her possible exposure to undue influence, and his volunteering of the mother’s privileged material to the respondent, were all viewed as strong evidence contrary to the normal inference.
—
[1] 2016 ONCA 191 [Neuberger].
[2] Neuberger, supra at paras. 88-89.
[3] 2023 ONSC 6094 [Carinci].
[4] In her affidavit, however, the respondent says that a sharing arrangement was reached sometime later, and under cross-examination, she said that she never used her mother’s funds to pay any of their expenses.
[5] The mother told her lawyer that she did this because the applicant had inherited significant funds from the sister who had recently passed and because she felt the applicant hated her.
[6] Carinci, supra at para. 1
[7] 2023 ONSC 5412 [Giann].
[8] Carinci, supra at para. 8.
[9] The lawyer disclosed file documents to the respondent which were used in the proceeding. There was no evidence that the documents disclosed were the lawyer’s entire file.
[10] At approximately the 1:30 mark of the video, the mother is confused and cannot answer the lawyer’s question about whether she had received and read his letters and drafts.
[11] Carinci, supra at para. 22.
[12] The lawyer also went on to ask a series of leading questions about the will, failing to ask any open-ended questions to elicit the mother’s understanding of the extent of her assets and liabilities, and did nothing in the ceremony to indicate that he took any steps at all to inquire about whether the mother was being unduly influenced by the respondent.
[13] Ibid., at para. 28.
[14] She provided that the sale was for $8,000 cash but also, that she had no idea what had become of the cash and that she never looked for it.
[15] Carinci, supra at para. 31.
[16] His Honour at para. 31 held that “it defies credulity that the mother decided independently to have [the respondent] take her to these institutions to greatly benefit [the respondent] and did not tell her or speak about it with her when [the respondent] was managing her affairs.”
[17] Carinci, supra at para. 35.
[18] See Johnson v. Johnson, 2022 ONCA 682 at para. 14 [Johnson].
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