Ringing in a New Year provides a good opportunity to refresh ourselves on the legal lessons of years past, including the ever-litigated “minimal evidentiary threshold” required to challenge a Last Will. 

To curb the desire of every disgruntled adult, child, or other relative from putting an estate through the needless and costly litigation of proving a Will, the Court of Appeal held in Neuberger v York, 2016 ONCA 191 that a person intending to challenge a Will must meet some minimal evidentiary threshold before the Court will order the production of third-party records and allow a Will  challenge to proceed. In other words, the person seeking to challenge the Will must point to some evidence, if accepted, would question the validity of the Will, such as evidence that points to a lack of capacity or undue influence. Towards the end of 2023, Justice F.L. Myers of the Ontario Superior Court of Justice rendered back-to-back decisions on the kind of evidence that meets this minimal threshold. 

The first of these decisions is Carinci v Carinci, 2023 ONSC 6094 which involved the classic case of two siblings at odds, with the brother challenging his late mother’s Will after she reduced his twenty-five percent share of a multi-million dollar estate to a $200,000.00 cash gift, with the balance of the estate going to his sister. 

Justice Myers begins his endorsement by highlighting the importance of objective evidence in these cases. He noted that the brother’s affidavit contained bald assertions and cherry-picked evidence of text messages that did not meet the minimal evidentiary threshold required to justify the estate incurring the time and expense of proving the Will.  

Fortunately for the brother in this case, the sister’s evidence before the Court provided Justice Myers with sufficient objective evidence to call into question the validity of the Will, including a video recording of the mother remotely signing her Will with her lawyer. In the video, the mother appears confused by questions and can be heard being audibly coached by someone off screen, who Justice Myers found in the circumstances could only be the sister. 

The sister also demonstrated credibility issues when being cross-examined on her evidence, including forgetting to mention a joint account she held with her mother containing $500,000.00, and alleging she had no knowledge of the sale of her mother’s car, even though the evidence showed that she had written the bill of sale. 

Justice Myers commented on the practical reality and involvement adult children have in their aging parents’ lives and noted that it was not unusual to have an adult child assisting with making appointments or other care needs. However, he held that “witnesses’ evidence is assessed based on internal consistency, external consistency, and consistency with common sense,” and the extent to which the sister tried to downplay her involvement in her mother’s affairs, in tandem with the objective evidence which demonstrated the contrary, only added to the suspicious circumstances in this case sufficient to meet the evidentiary threshold.  

In Dinally v. Dinally, 2023 ONSC 6178, released just five days later, Justice Myers again considered a Will challenge by a brother against his sister with respect to their late father’s Will. In the wake of their mother’s death, the sister took the father to a new estate planning lawyer after their parents’ longtime lawyer refused to accept the father’s instructions to transfer his house into joint ownership with the daughter.  

The new lawyer made the transfer, but then severed the joint tenancy three weeks later at the request of the father, which had the effect of ensuring his now 50% interest still passed 50-50 to his two children under his existing Will. About a year later, the father updated his Will to leave his entire estate to his daughter. The sister actively participated in all of the meetings between her father and this new lawyer. 

The Court granted the brother’s request for third-party financial, medical and legal files concerning the father. As in Carinci, Justice Myers again emphasized that those seeking to challenge a Will must provide objective, corroborated evidence of relevant events around the time of the challenged Will. Subjective assumptions of wrongdoing, speculation and innuendos will not meet the minimum threshold.  

In addition to the involvement of a new lawyer, Justice Myers also looked to the evidence provided by the sister, including medical records. The records suggested that the father’s doctor believed there was capacity around the time the house was transferred into joint tenancy with the sister, but the records also noted the father’s complaints about his daughter controlling his life, including taking away his cell phone, TV privileges, keeping him housebound for months, and most concerning, that the father felt there was no use fighting with his daughter because he would lose. 

Justice Myers held that the above was probative evidence of undue influence on its own without having to assume any evil or ill motive on the part of the alleged wrongdoer. Conversely, facts like a single bruise on an elderly parent during years of cohabitation with an adult child have no objective relevance to these cases since one would have to start with an assumption that the alleged wrongdoer is evil to find relevance in such a fact. 

His Honour also found it relevant and unfair that the sister used her authority as estate trustee to access information the brother did not have access to, and had tried to cherry pick which information to disclose for the motion. He ordered the third-party productions and awarded costs to the brother. 

What the lesson do we keep in mind for 2024? Objective and corroborated evidence is required to meet the minimal evidentiary threshold for a Will challenge and without you, costs may follow the loss of the hearing!