The court in Orde v. Foster, 2025 ONSC 4912 (“Orde”) denied the Applicants’ motion for additional production of the Deceased’s records on the basis that they did not meet the minimum evidentiary threshold (“MET”).[1]
Background
Orde concerned the estate of William Wayne Brown (the “Deceased”) who passed away on April 19, 2021. The Deceased was married to Beverly, and together they had two biological sons, Shannon and Billie. They also had 3 stepchildren, Roger, Steve and Kerrie.[2]
Christine Foster (“Christine”) was named as a Respondent and was a close friend of the Deceased and Beverly for several decades. Following Beverly’s death in 2019, Christine assumed a caretaking role in the Deceased’s life until his death.[3]
The Wills
On November 5, 2019, the Deceased executed a Last Will and Testament (the “2019 Will”) with the assistance of Mr. Jordan, the lawyer of the Deceased’s son Steve. On January 24, 2020, the Deceased executed a new Last Will and Testament with the assistance of Mr. Ainsworth (the “2020 Will”). [4]
In both the 2019 Will and the 2020 Will (collectively the “Wills”), Christine received a generous share of the Deceased’s estate (the “Estate”). Christine was provided a life estate in the Deceased’s home and a 25% share in the residue of the Estate.[5] Meanwhile, the 2019 Will did not provide for Shannon, Billie or Kerrie.
In the 2020 Will, Christine received a 30% share in the residue of the Estate, Kerrie received a 25% share, and the Canadian Diabetes Association received a 15% share. The 2020 Will did not provide anything for Steve, Roger, or Shannon.
The Motion
Roger, Steve and Shannon (the “Applicants”) commenced an application seeking an order to invalidate the Wills on the basis that the Deceased was incapable of executing the Wills and was unduly influenced by Christine. [6]
The Respondents were Christine, Billie, Gail, the Estate of Kerrie McCrea and the Canadian Diabetes Association (the “Respondents”).[7]
On April 5, 2022, the Applicants were granted an order for the production of the Deceased’s medical, financial and estate planning records. On August 23, 2022, the Applicants moved for further disclosure including access to the Deceased’s cell phone, journal and his tablet.
On August 23, 2022, the Respondents contended that the Applicants’ request for further disclosure should be denied because they failed to meet the MET. The court ordered the Respondents to file a motion to assess whether the Applicants satisfied the MET for additional disclosure.
The Applicants argued that the Respondents had raised the MET claim too late into the proceeding, and that it should have been raised at the “infancy” of litigation.[8]
In Orde, the court determined that the Applicants did not provide sufficient evidence to support a claim that the Deceased lacked the testamentary capacity to execute the Wills or that he was unduly influenced. On this basis, the court asserted that the Applicants failed to meet the MET. [9]
Issue and Analysis
The court in Orde asserted that Rule 75 of the Rules of Civil Procedure, RRO 1990, Reg 194 governs the process for contentious estate disputes including the procedure for challenging a will in Ontario. [10] Under Rule 75.01, an individual with a financial interest in an estate may apply to the court for directions. [11]
In Neuberger Estate v. York, the Court of Appeal (notably, not a minimum evidentiary threshold matter, rather the subject matter of the appeal was issue estoppel) asserted that there must be a “minimal evidentiary threshold” before the court will agree to prove a testamentary instrument.[12] In other words, no one has an automatic right to challenge a will. The statutory language being permissive which is not to say that the common law precedent does not fall in favour of disclosure, in fact it does, given the court’s role where the deceased person cannot be there to speak to the matter. Nevertheless, the court in Orde, quoting Neuberger Estate v. York, provided the following:
[46]…“In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation.” [13]
The court in Orde went on to state the following:
[53] “the MET will only be established when there is a reliable and dependable foundation upon which to argue that the validity of the will is in peril. That foundation must be supported by more than supposition or conjecture.”[14]
The court asserted that the Applicants were unable to provide evidence that Christine had unduly influenced the Deceased. Rather, the court was satisfied that Christine had “sufficiently answered all of the allegations raised” by the Applicants.[15] Christine rebutted the Applicants’ allegations relating to the Deceased’s testamentary capacity through the results of the Deceased’s geriatric assessment that took place in 2019. The assessment revealed that the Deceased’s cognition had improved between 2016-2020 starting at 25-28/30 and climbing all the way to 30/30 in 2020.
The court also dismissed the Applicants claim that the MET was raised too late in the proceeding. The court determined that the Respondents were justified in initially providing disclosure and later invoking the MET when it became clear that the Applicants lacked evidence to support a further disclosure request. Lastly, the court asserted that the Respondents raised the MET concern at a “reasonable juncture” under the circumstances.[16]
In summing up, it is not evident on reading the decision whether or not the initial order for disclosure was made on consent. There is no indication that there were examinations, arguably another way to obtain the evidence which one assumes would be sought to advance the undue influence aspects of the claim given that the evidence on capacity seemingly did not to support the challenge.
—
[1] Orde v. Foster, 2025 ONSC 4912 at para 1
[2] Ibid at para 8
[3] Ibid at para 12
[4] Ibid at para 64
[5] Ibid at para 33
[6] Ibid at para 18
[7] Ibid at para 20
[8] Ibid at para 41
[9] Ibid at para 97
[10] Ibid at para 44
[11] Ibid at para 44
[12] Ibid at para 46
[13] Ibid at para 46
[14] Ibid at para 53
[15] Ibid at para 66
[16] Ibid at para 107
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Written by: Gabriella Banhara
Posted on: September 29, 2025
Categories: Commentary
The court in Orde v. Foster, 2025 ONSC 4912 (“Orde”) denied the Applicants’ motion for additional production of the Deceased’s records on the basis that they did not meet the minimum evidentiary threshold (“MET”).[1]
Background
Orde concerned the estate of William Wayne Brown (the “Deceased”) who passed away on April 19, 2021. The Deceased was married to Beverly, and together they had two biological sons, Shannon and Billie. They also had 3 stepchildren, Roger, Steve and Kerrie.[2]
Christine Foster (“Christine”) was named as a Respondent and was a close friend of the Deceased and Beverly for several decades. Following Beverly’s death in 2019, Christine assumed a caretaking role in the Deceased’s life until his death.[3]
The Wills
On November 5, 2019, the Deceased executed a Last Will and Testament (the “2019 Will”) with the assistance of Mr. Jordan, the lawyer of the Deceased’s son Steve. On January 24, 2020, the Deceased executed a new Last Will and Testament with the assistance of Mr. Ainsworth (the “2020 Will”). [4]
In both the 2019 Will and the 2020 Will (collectively the “Wills”), Christine received a generous share of the Deceased’s estate (the “Estate”). Christine was provided a life estate in the Deceased’s home and a 25% share in the residue of the Estate.[5] Meanwhile, the 2019 Will did not provide for Shannon, Billie or Kerrie.
In the 2020 Will, Christine received a 30% share in the residue of the Estate, Kerrie received a 25% share, and the Canadian Diabetes Association received a 15% share. The 2020 Will did not provide anything for Steve, Roger, or Shannon.
The Motion
Roger, Steve and Shannon (the “Applicants”) commenced an application seeking an order to invalidate the Wills on the basis that the Deceased was incapable of executing the Wills and was unduly influenced by Christine. [6]
The Respondents were Christine, Billie, Gail, the Estate of Kerrie McCrea and the Canadian Diabetes Association (the “Respondents”).[7]
On April 5, 2022, the Applicants were granted an order for the production of the Deceased’s medical, financial and estate planning records. On August 23, 2022, the Applicants moved for further disclosure including access to the Deceased’s cell phone, journal and his tablet.
On August 23, 2022, the Respondents contended that the Applicants’ request for further disclosure should be denied because they failed to meet the MET. The court ordered the Respondents to file a motion to assess whether the Applicants satisfied the MET for additional disclosure.
The Applicants argued that the Respondents had raised the MET claim too late into the proceeding, and that it should have been raised at the “infancy” of litigation.[8]
In Orde, the court determined that the Applicants did not provide sufficient evidence to support a claim that the Deceased lacked the testamentary capacity to execute the Wills or that he was unduly influenced. On this basis, the court asserted that the Applicants failed to meet the MET. [9]
Issue and Analysis
The court in Orde asserted that Rule 75 of the Rules of Civil Procedure, RRO 1990, Reg 194 governs the process for contentious estate disputes including the procedure for challenging a will in Ontario. [10] Under Rule 75.01, an individual with a financial interest in an estate may apply to the court for directions. [11]
In Neuberger Estate v. York, the Court of Appeal (notably, not a minimum evidentiary threshold matter, rather the subject matter of the appeal was issue estoppel) asserted that there must be a “minimal evidentiary threshold” before the court will agree to prove a testamentary instrument.[12] In other words, no one has an automatic right to challenge a will. The statutory language being permissive which is not to say that the common law precedent does not fall in favour of disclosure, in fact it does, given the court’s role where the deceased person cannot be there to speak to the matter. Nevertheless, the court in Orde, quoting Neuberger Estate v. York, provided the following:
[46]…“In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation.” [13]
The court in Orde went on to state the following:
[53] “the MET will only be established when there is a reliable and dependable foundation upon which to argue that the validity of the will is in peril. That foundation must be supported by more than supposition or conjecture.”[14]
The court asserted that the Applicants were unable to provide evidence that Christine had unduly influenced the Deceased. Rather, the court was satisfied that Christine had “sufficiently answered all of the allegations raised” by the Applicants.[15] Christine rebutted the Applicants’ allegations relating to the Deceased’s testamentary capacity through the results of the Deceased’s geriatric assessment that took place in 2019. The assessment revealed that the Deceased’s cognition had improved between 2016-2020 starting at 25-28/30 and climbing all the way to 30/30 in 2020.
The court also dismissed the Applicants claim that the MET was raised too late in the proceeding. The court determined that the Respondents were justified in initially providing disclosure and later invoking the MET when it became clear that the Applicants lacked evidence to support a further disclosure request. Lastly, the court asserted that the Respondents raised the MET concern at a “reasonable juncture” under the circumstances.[16]
In summing up, it is not evident on reading the decision whether or not the initial order for disclosure was made on consent. There is no indication that there were examinations, arguably another way to obtain the evidence which one assumes would be sought to advance the undue influence aspects of the claim given that the evidence on capacity seemingly did not to support the challenge.
—
[1] Orde v. Foster, 2025 ONSC 4912 at para 1
[2] Ibid at para 8
[3] Ibid at para 12
[4] Ibid at para 64
[5] Ibid at para 33
[6] Ibid at para 18
[7] Ibid at para 20
[8] Ibid at para 41
[9] Ibid at para 97
[10] Ibid at para 44
[11] Ibid at para 44
[12] Ibid at para 46
[13] Ibid at para 46
[14] Ibid at para 53
[15] Ibid at para 66
[16] Ibid at para 107
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