In Butt et. al., v. The Estate of Robert John Kelly et al.[1], 2025 ONSC 4646, the Court addressed a recurring challenge in estate litigation: how to reconcile the sanctity of solicitor-client privilege with the need to uncover a testator’s true intentions when allegations of undue influence and incapacity are made.

Background

The motion was brought by the Applicant, Karen Butt (the “Applicant”), the former spouse of the late Robert John Kelly (“the Deceased”), under Rules 75.06, 30.10, and 31.10 of the Rules of Civil Procedure.[2] The Applicant sought production of the complete solicitor’s file of Angela Daniels (“Ms. Daniels”), who provided legal advice to the Deceased in May 2021, as well as leave to examine Ms. Daniels (or relevant employees) regarding those services.[3]

The Respondent, Robyn Graham (the “Respondent”), Mr. Kelly’s partner at the time of his death, opposed the motion on the basis that the records were protected by solicitor-client privilege, which survived death and, in her view, was not subject to the “wills exception.”[4] Ms. Daniels took no position.[5]

The Applicant’s suspicions stemmed from a sequence of events in the final months of Mr. Kelly’s life. After separating from the Respondent in March 2021, the Deceased consulted Ms. Daniels in May 2021 regarding his separation. Weeks later, on May 19, 2021, the Deceased was hospitalized and began suffering from reported cognitive decline. The Respondent visited the Deceased frequently during his admission.

While the Deceased was hospitalized, he executed powers of attorney appointing the Respondent, changed the beneficiary designations in his life insurance plans, naming the Respondent, and finally, made a new will on August 8, 2021. In his Will, the Deceased gifted 20% of his estate to each of his three children, $5,000 to a church, $1 to the Applicant, and the residue to the Respondent, who was also named as the estate trustee.[6] The testamentary documents were not prepared by a lawyer, but were signed while the Deceased was hospitalized.[7]

The Deceased moved into the Respondent’s home upon being discharged on August 12, 2021, and died shortly thereafter on August 25, 2021.

Issues

The Court considered:[8]

1. Whether to order production of Ms. Daniels’ file; and,
2. Whether to permit Ms. Daniels’ examination in relation to the legal services provided.

Legal Principles

Justice Smith began by confirming that Rules 30.10 and 31.10 permit production from and examination of non-parties if the documents or testimony are relevant to material issues in the proceeding, non-privileged, and where it would be unfair to require the moving party to proceed without discovery of such documents.[9] The key question was whether the “wills exception” to solicitor-client privilege applied.

The Court, citing Geffen v. Goodman Estate[10], 1991 CanLII 69 (SCC) and Waters v. Henry[11], 2023 ONSC 4465 explains under the wills exception, solicitor records may be produced where necessary to ascertain the testator’s true intentions, particularly in will challenges involving allegations of lack of capacity or undue influence.[12] The exception may extend beyond the will itself to encompass documents shedding light on the testator’s capacity, susceptibility to influence, and relationships at the relevant time.[13]

Analysis

Here, the Court found the timing critical: the Respondent’s sudden return to the Deceased’s life followed by the changes to his estate planning created a strong suspicion that the Deceased lacked capacity to make a will and was unduly influenced.[14]

Ms. Daniels’ retainer in May 2021 fell less than two months before Mr. Kelly’s hospitalization and the execution of the disputed estate planning documents. At that time, Mr. Kelly appeared to be in an adversarial position toward the Respondent, pursuing property claims and receiving disparaging comments from her.[15] However, his stance suddenly shifted dramatically during hospitalization, culminating in substantial benefits to the Respondent under his will and beneficiary designations.

Although Ms. Daniels did not prepare the challenged documents, her file was, “the only existing legal documents within a reasonable nexus of time” to the disputed transactions, and likely contained evidence relevant to the Deceased’s intentions, financial planning, and relationship dynamics before his decline.[16] Given the centrality of capacity and undue influence to the litigation, Justice Smith held that “the integrity of the testamentary process outweighs the interests of maintaining the solicitor-client privilege” in this case.[17]

Result

The Court ordered:

• Production of Ms. Daniels’ complete file regarding the Deceased;
• Leave to examine Ms. Daniels (or a relevant employee) regarding those services.

Justice Smith emphasized that this evidence could provide crucial insight into Mr. Kelly’s intentions, his relationship with the Respondent, and any susceptibility to undue influence during the pivotal pre-hospitalization period.[18]

Final Thoughts

The Estate of Robert John Kelley reinforces that the wills exception is not confined to the drafting of the will itself, it can capture earlier legal advice closely connected to disputed testamentary acts. Where capacity and undue influence are at the heart of the dispute, courts may prioritize the truth-seeking function of the litigation over preserving privilege, especially when the documents sought are uniquely positioned to illuminate the testator’s state of mind and intentions.

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[1] Butt et. al., v. The Estate of Robert John Kelly et al, 2025 ONSC 4646 [The Estate of Robert John Kelley].

[2] Ibid at para 1.

[3] Ibid.

[4] Ibid at para 2.

[5] Ibid at para 3.

[6] Ibid at para 14.

[7] Ibid at para 27.

[8] Ibid at 16.

[9] Ibid at paras 18-19.

[10] Geffen v. Goodman Estate, 1991 CanLII 69 (SCC)

[11] Waters v. Henry, 2023 ONSC 4465.

[12] The Estate of Robert John Kelley, supra note 1 at paras 20-21.

[13] Ibid at para 21.

[14] Ibid at para 22.

[15] Ibid at para 24.

[16] Ibid at para 28.

[17] Ibid at para 31.

[18] Ibid at paras 29, 34.