1. Introduction
Cases continue to consider the requirement imposed on an applicant seeking proof of a will in solemn form to satisfy a minimal evidentiary threshold to permit the application to succeed. Graham v McNally Estate and Blais[1] is a recent example and is worth a look.
2. Facts
The testator, Sheila McNally, who died in October 2021, executed her last ill in November 2020. In it she appointed Katherine Blais, a friend of some 14 years, as her executor, and Katherine’s husband as alternative executor. The Will was prepared by a lawyer selected by Sheila. Apart from a specific bequest, the Will directed that 40 percent of the residue of the estate be set aside and held on a Henson-like trust for Sheila’s niece, Laura, during her lifetime and gave the executor full discretion to pay income and capital to Laura. The will left the balance of the residue to Katherine and her husband, ‘equally or the survivor of them’. Sheila also named Katherine as her attorney for property and attorney for personal care, but Katherine did not act in either capacity before Sheila’s death.
Sheila did not name her older sister, Patricia Graham (Laura’s mother), a beneficiary under the will. The Will replaced a 2001 will, which named neither Patricia nor Laura a beneficiary.
Patricia brought an application in which she questioned the validity of the 2020 Will on the following grounds: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the Will. Katherine brought a motion for an order dismissing the application on the ground that Patricia had not met the minimum evidentiary threshold required to permit the application to proceed.
In paragraph 7, Justice Corthorn notes that there is no evidence to suggest that Sheila was ever married or that she had any children. There is, however, a confusing statement in paragraph 8. It speaks of Patricia’s places of residence, and then states, ‘In the years prior to her husband’s death, Sheila spent six months of the year living in Mexico …’ I can only assume that the phrase ‘her husband’s death’ refers to Patricia’s husband’s death, and that the word ‘Sheila’ is a typographical error and should have read ‘Patricia’.
Although the sisters were in weekly telephone contact (which, except for one brief telephone call, ended in February 2019), they last met in September 2011.
Sheila and Katherine and her husband met as neighbours in 2007 and remained friends until Sheila’s death.
In support of her application, Patricia relied on her 2022 affidavit, on which she was not cross-examined, as well as her 2023 affidavit, on which she was cross-examined. She expressed her concern for not being left anything under the Will even though she was Sheila’s ‘lifetime Best-friend and supporter’, and Sheila’s failure to leave a vested interest in the trust for Laura.
Katherine relied on her 2023 affidavit in support of her motion, on which she was cross-examined. In it she describes her relationship with Sheila.
3. Analysis and Judgment
Justice Corthorn began her analysis by noting that the only issue was ‘whether Patricia has met the minimal evidentiary threshold required for the court to permit the application to proceed’, and in particular whether ‘Patricia adduced, or pointed to, evidence which, if accepted, calls into question the validity of the Will on any one or more of the three grounds on which she relies’.
Her Honour found that Patricia failed to adduce or point to such evidence and therefore dismissed the application and granted the motion (para 31). She found that most of Patricia’s evidence was nothing more than suspicion or speculation on her part. In her view, it was apparent that Patricia:
(a) is unable to accept that Sheila chose to leave a large portion of her estate to friends of 14 years, rather than to a member of her family;
(b) is unable to comprehend why Sheila made that decision; and
(c) is upset that Sheila provided for a trust for Laura’s benefit during her lifetime and did not provide for Laura to inherit at least a portion of the estate.
Her Honour discussed the leading case, Neuberger v York[2] at some length and noted that under the Rules, an ‘interested person’ such as Patricia does not have the right to require that a disputed testamentary instrument be proved in solemn form, for the court has a discretion whether to grant the requested order and to grant directions. Moreover, it is important to prevent estates from being needlessly exposed to litigation and expense. Fort that reason, Neuberger requires the applicant to meet the evidentiary threshold of adducing or pointing to evidence that, if accepted, would call the validity of the testamentary instrument into question. Her Honour also referred to Seepa v Seepa,[3] in which the court notes that at this preliminary stage the issue is not whether the applicant has proved her case but whether she be permitted to proceed with documentary discovery and other tools.
On the issue of testamentary capacity, Justice Corthorn found that Patricia did not provide any anecdotal evidence about Sheila’s condition in the last 2.5 years of her life. In fact, the evidence on which she relies is not substantiated by any objective evidence and consists instead of speculation on her part. Thus, Patricia’s evidence did not meet the required threshold.
On the issue of undue influence, Patricia alleged that Katherine unduly influenced Sheila to abandon her relationship with Patricia, to appoint Katherine as sole executor, name Katherine as a beneficiary, and name her husband as a contingent beneficiary. On this issue Justice Corthorn referred to Young v Prychitko,[4] which notes that for undue influence to exist, there must be coercion, and the influence imposed on the testator must be ‘so overpowering that the document reflects the will of the influencer and not that of the deceased’. Patricia testified that Sheila was a devotee of Saint Brother Andre Besette and that, once she learnt that Katherine was a relative of Besette, their friendship grew stronger, and also that in consequence Sheila trusted Katherine. Her Honour held that the evidence of the relationship between Sheila and Katherine and Sheila’s positive view of Katherine, even if accepted, was not sufficient to call the validity of the will into question but failed to meet the minimal evidentiary threshold. Moreover, Patricia did not adduce and was unable to point to any evidence to support the conclusion that Katherine attempted to influence Sheila.
On the issue of suspicious circumstances, Justice Corthorn, as one would expect, discussed the seminal case, Vout v Hay.[5] It shows that suspicion regarding the execution of a will may be raised by circumstances that suggest lack of testamentary capacity, undue influence, and those that surround the preparation of the will. The case also confirms that the propounder of a will is assisted by the following rebuttable presumption: ‘Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary capacity’.
Her Honour noted that there was no evidence that the Will was executed without the required formalities. Indeed, Katherine’s evidence was sufficient to dispel any suspicion that Patricia attempted to raise. Moreover, the uncontested evidence was that Katherine was not involved in Sheila’s selection of a lawyer to draft the Will, in the substantive content of the Will, or in Sheila’s selection of an executor. Since any suspicion raised by Patricia was dispelled, the burden of proof reverted to her, but she failed to satisfy the minimal evidentiary threshold on the third issue either.
The court ruled that Katherine, as the successful party, was entitled personally and as executor to reasonable costs of both the motion and the application. Since Laura had delivered an affidavit in response to the court’s concern about whether she required a litigation guardian (which it turned out she did not), the court ruled that Laura was also entitled to costs for the preparation of the affidavit. The court directed Patricia to pay these costs to Katherine and Laura. Further, the court made a provision for costs submissions if required.
—
[1] 2024 ONSC 4006.
[2] 2016 ONCA 191, paras 86-89.
[3] 2017 ONSC 5368, paras 35, 40.
[4] 2022 ONSC 1502, paras 20-21.
[5] [1995] 2 SCR 876, at 889.
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Written by: Albert Oosterhoff
Posted on: February 14, 2025
Categories: Commentary, WEL Newsletter, Wills
1. Introduction
Cases continue to consider the requirement imposed on an applicant seeking proof of a will in solemn form to satisfy a minimal evidentiary threshold to permit the application to succeed. Graham v McNally Estate and Blais[1] is a recent example and is worth a look.
2. Facts
The testator, Sheila McNally, who died in October 2021, executed her last ill in November 2020. In it she appointed Katherine Blais, a friend of some 14 years, as her executor, and Katherine’s husband as alternative executor. The Will was prepared by a lawyer selected by Sheila. Apart from a specific bequest, the Will directed that 40 percent of the residue of the estate be set aside and held on a Henson-like trust for Sheila’s niece, Laura, during her lifetime and gave the executor full discretion to pay income and capital to Laura. The will left the balance of the residue to Katherine and her husband, ‘equally or the survivor of them’. Sheila also named Katherine as her attorney for property and attorney for personal care, but Katherine did not act in either capacity before Sheila’s death.
Sheila did not name her older sister, Patricia Graham (Laura’s mother), a beneficiary under the will. The Will replaced a 2001 will, which named neither Patricia nor Laura a beneficiary.
Patricia brought an application in which she questioned the validity of the 2020 Will on the following grounds: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the Will. Katherine brought a motion for an order dismissing the application on the ground that Patricia had not met the minimum evidentiary threshold required to permit the application to proceed.
In paragraph 7, Justice Corthorn notes that there is no evidence to suggest that Sheila was ever married or that she had any children. There is, however, a confusing statement in paragraph 8. It speaks of Patricia’s places of residence, and then states, ‘In the years prior to her husband’s death, Sheila spent six months of the year living in Mexico …’ I can only assume that the phrase ‘her husband’s death’ refers to Patricia’s husband’s death, and that the word ‘Sheila’ is a typographical error and should have read ‘Patricia’.
Although the sisters were in weekly telephone contact (which, except for one brief telephone call, ended in February 2019), they last met in September 2011.
Sheila and Katherine and her husband met as neighbours in 2007 and remained friends until Sheila’s death.
In support of her application, Patricia relied on her 2022 affidavit, on which she was not cross-examined, as well as her 2023 affidavit, on which she was cross-examined. She expressed her concern for not being left anything under the Will even though she was Sheila’s ‘lifetime Best-friend and supporter’, and Sheila’s failure to leave a vested interest in the trust for Laura.
Katherine relied on her 2023 affidavit in support of her motion, on which she was cross-examined. In it she describes her relationship with Sheila.
3. Analysis and Judgment
Justice Corthorn began her analysis by noting that the only issue was ‘whether Patricia has met the minimal evidentiary threshold required for the court to permit the application to proceed’, and in particular whether ‘Patricia adduced, or pointed to, evidence which, if accepted, calls into question the validity of the Will on any one or more of the three grounds on which she relies’.
Her Honour found that Patricia failed to adduce or point to such evidence and therefore dismissed the application and granted the motion (para 31). She found that most of Patricia’s evidence was nothing more than suspicion or speculation on her part. In her view, it was apparent that Patricia:
(a) is unable to accept that Sheila chose to leave a large portion of her estate to friends of 14 years, rather than to a member of her family;
(b) is unable to comprehend why Sheila made that decision; and
(c) is upset that Sheila provided for a trust for Laura’s benefit during her lifetime and did not provide for Laura to inherit at least a portion of the estate.
Her Honour discussed the leading case, Neuberger v York[2] at some length and noted that under the Rules, an ‘interested person’ such as Patricia does not have the right to require that a disputed testamentary instrument be proved in solemn form, for the court has a discretion whether to grant the requested order and to grant directions. Moreover, it is important to prevent estates from being needlessly exposed to litigation and expense. Fort that reason, Neuberger requires the applicant to meet the evidentiary threshold of adducing or pointing to evidence that, if accepted, would call the validity of the testamentary instrument into question. Her Honour also referred to Seepa v Seepa,[3] in which the court notes that at this preliminary stage the issue is not whether the applicant has proved her case but whether she be permitted to proceed with documentary discovery and other tools.
On the issue of testamentary capacity, Justice Corthorn found that Patricia did not provide any anecdotal evidence about Sheila’s condition in the last 2.5 years of her life. In fact, the evidence on which she relies is not substantiated by any objective evidence and consists instead of speculation on her part. Thus, Patricia’s evidence did not meet the required threshold.
On the issue of undue influence, Patricia alleged that Katherine unduly influenced Sheila to abandon her relationship with Patricia, to appoint Katherine as sole executor, name Katherine as a beneficiary, and name her husband as a contingent beneficiary. On this issue Justice Corthorn referred to Young v Prychitko,[4] which notes that for undue influence to exist, there must be coercion, and the influence imposed on the testator must be ‘so overpowering that the document reflects the will of the influencer and not that of the deceased’. Patricia testified that Sheila was a devotee of Saint Brother Andre Besette and that, once she learnt that Katherine was a relative of Besette, their friendship grew stronger, and also that in consequence Sheila trusted Katherine. Her Honour held that the evidence of the relationship between Sheila and Katherine and Sheila’s positive view of Katherine, even if accepted, was not sufficient to call the validity of the will into question but failed to meet the minimal evidentiary threshold. Moreover, Patricia did not adduce and was unable to point to any evidence to support the conclusion that Katherine attempted to influence Sheila.
On the issue of suspicious circumstances, Justice Corthorn, as one would expect, discussed the seminal case, Vout v Hay.[5] It shows that suspicion regarding the execution of a will may be raised by circumstances that suggest lack of testamentary capacity, undue influence, and those that surround the preparation of the will. The case also confirms that the propounder of a will is assisted by the following rebuttable presumption: ‘Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary capacity’.
Her Honour noted that there was no evidence that the Will was executed without the required formalities. Indeed, Katherine’s evidence was sufficient to dispel any suspicion that Patricia attempted to raise. Moreover, the uncontested evidence was that Katherine was not involved in Sheila’s selection of a lawyer to draft the Will, in the substantive content of the Will, or in Sheila’s selection of an executor. Since any suspicion raised by Patricia was dispelled, the burden of proof reverted to her, but she failed to satisfy the minimal evidentiary threshold on the third issue either.
The court ruled that Katherine, as the successful party, was entitled personally and as executor to reasonable costs of both the motion and the application. Since Laura had delivered an affidavit in response to the court’s concern about whether she required a litigation guardian (which it turned out she did not), the court ruled that Laura was also entitled to costs for the preparation of the affidavit. The court directed Patricia to pay these costs to Katherine and Laura. Further, the court made a provision for costs submissions if required.
—
[1] 2024 ONSC 4006.
[2] 2016 ONCA 191, paras 86-89.
[3] 2017 ONSC 5368, paras 35, 40.
[4] 2022 ONSC 1502, paras 20-21.
[5] [1995] 2 SCR 876, at 889.
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