I have previously written on the Endorsement of the Honourable Mr. Justice F.L. Myers in White v. White in July of 2023. In that article, found here, I discussed how Myers J. questioned whether section 9 of the Estates Act could apply as well to a document that one hopes might qualify as a will-equivalent under s. 21.1 of the Succession Law Reform Act.
To briefly recap, section 9 of the Estates Act is designed to help beneficiaries find and obtain a deceased person’s will. Under this section, the court can order a person to produce “any paper or writing being or purporting to be testamentary.”
Section 21.1 of the SLRA allows a court to validate wills documents that are not properly executed as wills.
The issue raised in White v. White is whether a potential beneficiary is entitled to compel disclosure of documents in the possession of a lawyer for a deceased person for the purpose of ascertaining whether any of those documents might be close to a will to be recognized under section 21.1. As this is a novel question, the latest decision in White v. White will likley have some valuable precedential value.
The central matter argued in White v. White is whether lawyers’ notes leading to an unsigned draft will would suffice for section 21.1, however, Myers J. recognized that the issue more-or-less concerned whether the applicant ought to be entitled to call for production of counsel’s file to determine if section 21.1 might apply to anything contained therein.
The deceased had discussed changes to her will with a lawyer. An appointment was set to meet and finalize a new will, however, the deceased was hospitalized and died several days later, without having met with the lawyer.
The applicant was not challenging the prior Will but rather, wanted to see if “he can do better without undermining what he already has.” Myers J. recognized that looking for a document that might be testamentary in nature before a will challenge is brought is pre-litigation discovery, which is generally unavailable (one can agree or not with this given for public policy reasons the court must be interested in the preparing of the last valid testamentary document)., .
As such, His Honour’s Endorsement of June 21, 2023, ultimately deferred consideration of the application to allow the applicant an opportunity to respond with evidence and further legal submissions.
In the applicant’s new affidavit, additional facts were adduced including:
- That his mother told him that her financial advisors at RBC questioned the residuary gifts in her prior will, leading her to rethink her Will;
- Several conversations between the applicant and his mother, including one on August 1, 2022, where the mother discussed her new will would have changes which included:
- Updating her estate trustee;
- Decreasing one beneficiary’s residuary share in her estate;
- Increasing the residuary share of two beneficiaries; and
- Increasing the applicant’s residuary share from 10 per cent to 30 or 40 per cent.; and
- In hospital, in preparation for her meeting with the drafting lawyer, his mother asked him to help ensure that these figures were included in the draft will.
Myers J. reviewed section 21.1 of the SLRA and the case law interpretations which followed its inception including his reasons in the case of Kertesz v. Kertesz et al., where His Honour recognized as a valid will under section 21.1, an unsigned note prepared by a deceased person who knew his death was imminent.
In each of the cases reviewed, the court found the document being recognized represented a “fixed and final” expression of the deceased person’s testamentary intentions as at the time of its creation.
Myers J. was concerned that applications of this nature could become a way for disgruntled relatives and thwarted heirs to inflict costs and delay on an estate and its beneficiaries, as addressed in Johnson v. Johnson. However, in light of the applicant’s evidence of the existence of a written will document and the fact that the applicant is not a disgruntled or excluded relative, His Honour was of the view that his concerns in this case were alleviated. Moreover, the positions of the respondent and the estate trustee (who did not oppose the relief sought by the applicant and in fact, consented to the release of the solicitor’s file) were satisfactory to Myers J. that “the application is not an abuse or overbroad or just a fishing expedition.”
In this case, Myers J. was able to read section 9 of Estates Act as applying to a particular written will document that, as described in uncontested evidence, may meet section 21.1.
His Honour carefully explained that his decision is as narrow as it can be on the facts and held that the consents of the respondent and estate trustee in this case were significant. While His Honour was hesitant to consider an application where a party simply hoped to come across a document that might suffice a claim under section 21.1, that was not the case here.
In explaining the importance of this decision to the question of whether the scope of section 9 of the Estates Act was effectively expanded by section 21.1 of the SLRA, His Honour held that:
Nothing that I have said above is intended to allow s. 9 of the Estates Act to be used with section 21.1 of the SLRA to encourage fishing expeditions or to foster litigation that may be brought by a disgruntled relative to leverage a settlement by the threat of costs and delay of the litigation itself.
The decision of Myers J. granted an Order which required the drafting lawyer to deliver copies of all solicitor’s records, correspondence, notes and files relating to the 2022 testamentary wishes and/or estate planning of the deceased.
The most-recent decision in White was well-reasoned and recognized the importance of the fact that the applicant’s relief sought was unopposed and based on some evidence which would meet any minimal evidentiary threshold that may apply by analogy to Johnson, notwithstanding our view that Johnson is wrong in the result and leave was not granted to SCC .
This case was fact-specific and the decision therefore, fact-driven. While all cases are unique, this decision certainly speaks to the fact that section 21.1 of the SLRA will allow for the application of section 9 of the Estates Act where there is sufficient evidence that a potential testamentary document exists and where the relief sought is not simply a ‘fishing expedition,’ looking for something that may fit.
We look forward to reading the next section 21.1 decision as the jurisprudence in Ontario surrounding the validating provision evolves.
 2023 ONSC 3740 [White Endorsement].
 RSO 1990, c E.21 [Estates Act].
 RSO 1990, c S.26 [SLRA].
 Estates Act, supra note 2 at s. 9.
 2023 ONSC 7286 [White v. White].
 White v. White, supra note 4 at para. 13; see also White v. White, supra note 4 at para. 14 where it was held that the deceased’s 2014 will contains a clause that disinherits anyone who challenges its terms. Here, His Honour noted that “without a will challenge, the applicant has a tougher time dealing with the lawyer client privilege that seemingly applies to his mother’s communications with her lawyer,” and citing with approval Geffen v. Goodman Estate, 1991 CanLII 69 (SCC),  2 SCR 353, at p. 386 post b., that a will challenge is a recognized exception to a deceased person’s lawyer client privilege.
 White v. White, supra note 4 at para. 27.
 2023 ONSC 7055 [Kertesz].
 White v. White, supra note 4 at para. 38.
 2022 ONCA 682 [Johnson]; For more on the evidentiary threshold, see: Albert Oosterhoff, “Entitlement to Proof of a Will in Solemn Form” (June 11, 2021), WEL Partners Blog, accessed online at: http://welpartners.com/blog/2021/06/entitlement-to-proof-of-a-will-in-solemn-form/ and most recently, Brett Book, “Relying on the Respondent’s Evidence to Meet the Minimal Evidentiary Threshold” (November 14, 2023), WEL Partners Blog, accessed at: http://welpartners.com/blog/2023/11/relying-on-the-respondents-evidence-to-meet-the-minimal-evidentiary-threshold/.
 White v. White, supra note 4 at para. 63.