The recent decision in Seepa v Seepa, 2017 ONSC 5368 contains observations that may have an impact on future Will challenges under Rule 75.06 of the Rules of Civil Procedure and in particular, on the materials that must be placed before the court in the “Motion for Directions”, which typically initiates a Will challenge.
The parties were the two children of the deceased. The deceased had created a new Will not long before she passed, and she left the residue of her Estate to her younger son and left nothing to her eldest son. As it turned out, after the deceased’s husband passed, the younger son became the caregiver for his mother for many years and the eldest son, by contrast, visited his mother about twice a year. The eldest son challenged the Will on the basis of incapacity and undue influence, and brought a Motion for Directions requesting, among other things, solicitor records and medical records of the deceased.
The court ultimately granted the Motion for Directions requested by the eldest son, but opined on the evidential underpinning that is needed to support a Motion for Directions within the estate litigation context.
During the standard litigation process, a litigant is entitled to access all non-privileged documents and information that may be relevant to the matters in issue. If a party’s pleadings contain allegations, which properly raise a particular issue, then the information and documents related to that issue must be disclosed. With some exceptions, even information which may not necessarily be admissible in a trial must be disclosed during the discovery process. A party is given access to a lot of information he or she might otherwise not see.
However, the decision in Seepa makes it clear that in Will challenge cases a mere allegation is not sufficient to trigger the fact-finding processes. More is required. The court considered how litigation concerning Will challenges commits not only the parties but also the beneficiaries to a process that is intrusive, expensive, and slow. A Will challenge delves into the personal and confidential life of the deceased. It may result in the depletion of estate assets. It will undoubtedly delay the distribution of estate assets to beneficiaries. In light of these realities, the court stated that there needs to be some minimal evidentiary basis before the court at the outset of litigation to address the specific policy concerns associated with a Will challenge. In other words, the affidavit evidence of the person challenging the Will that is placed before the court in a Motion for Directions must be found to be sufficient to justify an Order, which will subject the estate and the beneficiaries to the intrusiveness, expense, and delay, inherent in requiring proof of the Will in solemn form.
As to whether the court’s observations are limited to Will challenges or extend to other estate litigation matters is uncertain, but there appears to be a natural basis to extend this requirement when one considers that the policy considerations stated in this case can arise in other aspects of estate litigation.
For more information, please see: Seepa v Seepa, 2017 ONSC 5368