What is the Minimal Evidentiary Threshold?
In Ontario, a person challenging the validity of a Will is now required to meet a ‘minimal evidentiary threshold’ before the courts will grant orders that the testamentary instrument be proven in solemn form (for its validity). The WEL on Will and Estate Challenges book[1] is a helpful guide to understanding the caselaw and rules of civil procedure that created this threshold.
In short, the minimal evidentiary threshold requires an interested person to adduce or point to some evidence that, if accepted, would call into question the validity of a testamentary instrument. This principle was referenced as having been articulated in Neuberger v York and further clarified in Seepa v Seepa, which emphasized that the threshold is not about proving the case but is rather about whether the applicant should be given tools like documentary discovery. Recent cases continue to apply Neuberger and Seepa.[2] The threshold has now even been used outside of Ontario.[3]
Has the Threshold Changed since Johnson v Johnson?
Since Johnson, courts have reiterated that a mere diagnosis of dementia does not suffice to challenge testamentary capacity.[4] This principle has been adopted by the Ontario Court of Appeal.[5] In an ONSC application decision upheld by the ONCA, the application judge cited Johnson and instructed himself, “I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer.”
Johnson identified a lose-lose situation that courts have since been mindful of, where ‘scorched earth’ litigation, fishing, etc. depletes an estate’s resources.[6]
The ONSC summarised threshold jurisprudence in a 2024 case:[7]
From a survey of this jurisprudence, the following principles emerge regarding the application of the minimal evidentiary threshold:
(a) The burden is on the Applicant to adduce some evidence which, if accepted, would call into question the validity of the will: Neuberger, at para. 89; Johnson, at paras. 8 and 12; Giann , at para. 18.
(b) The evidence adduced by the Applicant does not need to be proved at the time of establishing the minimal evidentiary threshold. The evidence must support the claim if accepted at a dispositive hearing, but “the preliminary vetting process is not to be confused with making findings of fact at trial”: Giann , at paras. 18 and 25.
(c) The evidentiary threshold is low, and proof of the case on the merits or meeting the standard of a genuine issue requiring a trial is not required: Johnson, at para. 17; Seepa, at para. 35; Gilbert , at para. 29, citing Morrish v. Katona2021 ONSC 3805; Martin v. Martin, 2018 ONSC 1840, at para. 35.
(d) If the Applicant establishes evidence supporting the request for the will challenge, the responding party has an opportunity to answer the evidence and, if the responding party does so successfully, the will challenge is dismissed: Neuberger, at para. 89; Johnson, at para. 8; Giann , at para. 17.
(e) Bald or conclusory assertions of wrongdoing alleged by the party challenging the will, and bare allegations and mere suspicions are insufficient to satisfy the minimal evidentiary threshold: Giann , at para. 108; Dimakarakos , at para. 19; Gilbert , at para. 27; Dinally , at para. 39.
What Meets the Evidentiary Threshold?
The court has consistently said that the minimal evidentiary threshold is low. In practice, courts may be anxious to avoid scorched-earth litigation, and may use the threshold to prevent depleting estates’ resources. Comparing possible new challenges against previous cases remains the best way to evaluate whether a new challenge may meet the evidentiary threshold.
Case Examples where Evidence Met the Minimal Evidentiary Threshold
- In Tibbutt v. Dorrington, the court found that the minimal evidentiary threshold was met when the applicants presented corroborating evidence re incapacity/suspicious circumstances, including a Facebook post by the respondent indicating the deceased had dementia and the fact that the respondent’s daughter wrote the will. The court noted that the evidence was sufficient to warrant documentary production, as it could clarify and narrow the issues in litigation.
- In Zarrin-Mehr v. Shokrai, the threshold was met due to irregularities in the will, despite the deceased’s legal background, which justified further investigation.
- In Carinci v. Carinci, the respondents submitted a damning video and other evidence that met the threshold. The applicant’s evidence would have been insufficient for their application regarding incapacity/undue influence, if not for the respondent’s own evidence.
- In Colbert v. Colbert et al., the judge reluctantly found that although there was no credible evidence of undue influence/incapacity, allegations were “not so obviously devoid of merit” and that it would be “premature to exercise the gatekeeper function in Johnson, Neuberger, and ”[8] This was in the context of a vexatious litigant hearing re: an estate challenge.
Case Examples where Evidence did not Meet the Minimal Evidentiary Threshold
- In Graham v. McNally Estate and Blais, the application to challenge a will per undue influence/incapacity/suspicious circumstances, was denied. The applicant and respondent both produced affidavits as evidence. The ONSC noted that “while the evidentiary threshold… is low, the evidence supporting the validity of an objection must be more than the suspicion of the objector.”[9]
- In Giann v. Giannopoulos, the court stated that the evidence must support the claim if accepted at a dispositive hearing (“bald assertions of wrongdoing” are insufficient), but the preliminary vetting process should not be confused with making findings of fact at trial.
- In Whitfield v. Glover, the court highlighted the need for objective, corroborated evidence to meet the threshold. The court found that the applicant’s suspicions and concerns were adequately answered by the evidence provided by the opposing party, thus not meeting the threshold.[10]
- In Troy et al. v. Troy et al., the ONSC found that medical records just before the execution of the challenged Power of Attorney were relevant. The application for production was specific and supported by records of accountant/lawyer/doctor communications indicating incapacity.
- In Officer v. The Estate of Charles Herbert Officer et al., the court dismissed the application for production of all financial information related to the deceased’s work. The application was overbroad and financial records were unnecessary.
What Other Factors Might the Court Consider?
If you Request Production of Documents, they better be Relevant
In Korba v. Farooque, some counselling records were ordered to be produced, based on notes the deceased left indicating he spoke to the counselor about his relationship with his son. Financial record request was denied, as the applicant did not explain why they were relevant.
In Gilbert v. Girouard the ONSC found no capacity concerns but found that the threshold was met for undue influence. Despite the applicants listing specific medical records, the Court found medical records were irrelevant and denied the application for production. Medical records following the date of the will’s execution are irrelevant.[11] The court noted that there were indications that the deceased was a private person.
There is a Difference Between Evidence and ‘Spin’
In Giann v. Giannopoulos (upheld on appeal[12]), the application Judge allowed room for credibility assessment.[13] They found that the affidavit evidence starts with the assumption that the respondents are ill-motivated and then sets out isolated facts that are not suspicious in and of themselves.[14] For example, other cases note that there is nothing, in and of itself, untoward about an adult child driving their 90 plus year-old parent to a lawyer’s office.[15] The application judge took particular issue with ‘cherry-picking’ evidence and disrespecting the respondent, e.g., backhanded comments like “surprisingly enough,” not using names, and placing quotation marks around the term “caregiver.”
Bare allegations and mere suspicions are not enough to meet the minimal evidentiary threshold. As recently reiterated by the ONSC, uncorroborated evidence is insufficient because of the Evidence Act.[16]
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[1] WEL on Will and Estate Challenges at pg 111
[2]E.g., Tibbutt v. Dorrington 2024 ONSC, Troy et al. v. Troy et al. 2024 ONSC, Zarrin-Mehr v. Shokrai 2024 ONSC
[3] Re Simmons Estate 2025 MBKB, Duhn Estate 2021 ABCA
[4] Troy et al. v. Troy et al. 2024 ONSC at 187, Prosser v. Jaun 2025 ONSC at 61, Simpson v. Mehta 2023 ONSC
[5] Giann v. Giannopoulos 2024 ONCA at 23
[6] Whitfield v. Glover 2024 ONSC, White v. White 2023 ONSC, Shafman v. Shafman 2023 ONSC, Fanelli v. Fanelli-Bruno 2023 ONSC
[7] Zarrin-Mehr v. Shokrai 2024 ONSC at 26
[8] Colbert v. Colbert et al. 2023 ONSC at 128
[9] Graham v. McNally Estate and Blais 2024 ONSC at 58
[10] Troy et al. v. Troy et al. 2024 ONSC at 185-186
[11] Gilbert v. Girouard 2023 ONSC at 19
[12] Giann v. Giannopoulos 2025 ONCA
[13] Giann v. Giannopoulos2023 ONSC at 20-21
[14] Giann v. Giannopoulos2023 ONSC at 34, 45
[15] Milner v. Milner 2024 ONSC at 38 citing Johnson v. Johnson at 14
[16] Milner v. Milner 2024 ONSC at 48, Reville v. Weeks 2024 ONSC at 94
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Written by: Jaclyn Holdsworth
Posted on: June 10, 2025
Categories: Commentary
What is the Minimal Evidentiary Threshold?
In Ontario, a person challenging the validity of a Will is now required to meet a ‘minimal evidentiary threshold’ before the courts will grant orders that the testamentary instrument be proven in solemn form (for its validity). The WEL on Will and Estate Challenges book[1] is a helpful guide to understanding the caselaw and rules of civil procedure that created this threshold.
In short, the minimal evidentiary threshold requires an interested person to adduce or point to some evidence that, if accepted, would call into question the validity of a testamentary instrument. This principle was referenced as having been articulated in Neuberger v York and further clarified in Seepa v Seepa, which emphasized that the threshold is not about proving the case but is rather about whether the applicant should be given tools like documentary discovery. Recent cases continue to apply Neuberger and Seepa.[2] The threshold has now even been used outside of Ontario.[3]
Has the Threshold Changed since Johnson v Johnson?
Since Johnson, courts have reiterated that a mere diagnosis of dementia does not suffice to challenge testamentary capacity.[4] This principle has been adopted by the Ontario Court of Appeal.[5] In an ONSC application decision upheld by the ONCA, the application judge cited Johnson and instructed himself, “I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer.”
Johnson identified a lose-lose situation that courts have since been mindful of, where ‘scorched earth’ litigation, fishing, etc. depletes an estate’s resources.[6]
The ONSC summarised threshold jurisprudence in a 2024 case:[7]
From a survey of this jurisprudence, the following principles emerge regarding the application of the minimal evidentiary threshold:
(a) The burden is on the Applicant to adduce some evidence which, if accepted, would call into question the validity of the will: Neuberger, at para. 89; Johnson, at paras. 8 and 12; Giann , at para. 18.
(b) The evidence adduced by the Applicant does not need to be proved at the time of establishing the minimal evidentiary threshold. The evidence must support the claim if accepted at a dispositive hearing, but “the preliminary vetting process is not to be confused with making findings of fact at trial”: Giann , at paras. 18 and 25.
(c) The evidentiary threshold is low, and proof of the case on the merits or meeting the standard of a genuine issue requiring a trial is not required: Johnson, at para. 17; Seepa, at para. 35; Gilbert , at para. 29, citing Morrish v. Katona2021 ONSC 3805; Martin v. Martin, 2018 ONSC 1840, at para. 35.
(d) If the Applicant establishes evidence supporting the request for the will challenge, the responding party has an opportunity to answer the evidence and, if the responding party does so successfully, the will challenge is dismissed: Neuberger, at para. 89; Johnson, at para. 8; Giann , at para. 17.
(e) Bald or conclusory assertions of wrongdoing alleged by the party challenging the will, and bare allegations and mere suspicions are insufficient to satisfy the minimal evidentiary threshold: Giann , at para. 108; Dimakarakos , at para. 19; Gilbert , at para. 27; Dinally , at para. 39.
What Meets the Evidentiary Threshold?
The court has consistently said that the minimal evidentiary threshold is low. In practice, courts may be anxious to avoid scorched-earth litigation, and may use the threshold to prevent depleting estates’ resources. Comparing possible new challenges against previous cases remains the best way to evaluate whether a new challenge may meet the evidentiary threshold.
Case Examples where Evidence Met the Minimal Evidentiary Threshold
Case Examples where Evidence did not Meet the Minimal Evidentiary Threshold
What Other Factors Might the Court Consider?
If you Request Production of Documents, they better be Relevant
In Korba v. Farooque, some counselling records were ordered to be produced, based on notes the deceased left indicating he spoke to the counselor about his relationship with his son. Financial record request was denied, as the applicant did not explain why they were relevant.
In Gilbert v. Girouard the ONSC found no capacity concerns but found that the threshold was met for undue influence. Despite the applicants listing specific medical records, the Court found medical records were irrelevant and denied the application for production. Medical records following the date of the will’s execution are irrelevant.[11] The court noted that there were indications that the deceased was a private person.
There is a Difference Between Evidence and ‘Spin’
In Giann v. Giannopoulos (upheld on appeal[12]), the application Judge allowed room for credibility assessment.[13] They found that the affidavit evidence starts with the assumption that the respondents are ill-motivated and then sets out isolated facts that are not suspicious in and of themselves.[14] For example, other cases note that there is nothing, in and of itself, untoward about an adult child driving their 90 plus year-old parent to a lawyer’s office.[15] The application judge took particular issue with ‘cherry-picking’ evidence and disrespecting the respondent, e.g., backhanded comments like “surprisingly enough,” not using names, and placing quotation marks around the term “caregiver.”
Bare allegations and mere suspicions are not enough to meet the minimal evidentiary threshold. As recently reiterated by the ONSC, uncorroborated evidence is insufficient because of the Evidence Act.[16]
—
[1] WEL on Will and Estate Challenges at pg 111
[2]E.g., Tibbutt v. Dorrington 2024 ONSC, Troy et al. v. Troy et al. 2024 ONSC, Zarrin-Mehr v. Shokrai 2024 ONSC
[3] Re Simmons Estate 2025 MBKB, Duhn Estate 2021 ABCA
[4] Troy et al. v. Troy et al. 2024 ONSC at 187, Prosser v. Jaun 2025 ONSC at 61, Simpson v. Mehta 2023 ONSC
[5] Giann v. Giannopoulos 2024 ONCA at 23
[6] Whitfield v. Glover 2024 ONSC, White v. White 2023 ONSC, Shafman v. Shafman 2023 ONSC, Fanelli v. Fanelli-Bruno 2023 ONSC
[7] Zarrin-Mehr v. Shokrai 2024 ONSC at 26
[8] Colbert v. Colbert et al. 2023 ONSC at 128
[9] Graham v. McNally Estate and Blais 2024 ONSC at 58
[10] Troy et al. v. Troy et al. 2024 ONSC at 185-186
[11] Gilbert v. Girouard 2023 ONSC at 19
[12] Giann v. Giannopoulos 2025 ONCA
[13] Giann v. Giannopoulos2023 ONSC at 20-21
[14] Giann v. Giannopoulos2023 ONSC at 34, 45
[15] Milner v. Milner 2024 ONSC at 38 citing Johnson v. Johnson at 14
[16] Milner v. Milner 2024 ONSC at 48, Reville v. Weeks 2024 ONSC at 94
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