Estate plans, if executed correctly, can help avoid litigation upon the testator’s passing. However, a sound estate plan does not always prevent family estate matters from becoming complicated. In a recent case before the Ontario Court of Appeal, a daughter brought an application to challenge her deceased mother’s Will, in which she was not a beneficiary. The daughter claimed the Will was invalid due to her mother lacking capacity at the time it was prepared.
Onus on Individual Challenging Will at First Instance
In the recent Ontario Court of Appeal case of Johnson v. Johnson, the testator passed at age 99 on August 20, 2020. At the time of her passing, the testator had three children named Janice, Hugh, and Nancy. The testator’s most recent Will was executed in 2015 and did not include Nancy as a beneficiary.
In March 2021, Janice obtained a certificate of appointment of estate trustee. Three months later, in June 2021, Nancy, the applicant, applied Civil Procedure Rule 75.06 to force the Will to be proved rather than simply be accepted as a valid Will.
An evidentiary onus is placed on any individual who challenges a Will. In her application, Nancy was required to follow the procedural steps under Rule 75.06, which required her to demonstrate, with a minimal evidentiary threshold, that the Will is a questionable document. However, Nancy attempted to use Rule 75.06 as a production motion. She sought legal, financial and medical documents, which she planned to use to demonstrate that there were grounds for challenging the Will.
Applicant Must Meet Evidentiary Threshold for Will Challenge Without Assistance From The Estate: Motion Judge
The motion judge denied Nancy’s request for production. The Court found that Nancy failed to meet the minimal evidentiary threshold required to open the estate to litigation and determine whether the Will is to be proved. Justice Williams stated that the applicant must meet the minimum evidentiary threshold without assistance from the estate. The Court went on to note that there is no automatic right to production at the first instance.
Motion Judge Found Daughter Left Out of Will Due to Dispute With Mother
The motion judge went on to note that there was evidence provided by the estate which showed why Nancy was left out of the Will. For example, while Nancy acted as her mother’s attorney, she added her name to her mother’s investment accounts. The testator, however, had made it clear that she did not wish for Nancy to benefit from the accounts.
In 2014, the testator sought an accounting against Nancy. Nancy refused to remove her name from the accounts, requiring the testator to prepare an affidavit and commence an application against her. This affidavit formed part of the basis for the motion judge’s decision to dismiss Nancy’s application to require the Will’s validity to be proven.
Daughter Appeals Application Judge’s Decision
Nancy appealed the decision to the Ontario Court of Appeal. She argued that the motion judge ignored the issue of whether the testator had the legal capacity to prepare the affidavit against Nancy. She also claimed that the application judge erred in misapplying the law and dismissing the application for documentary production.
The Court of Appeal stated that while the Court has the direction to order that a testamentary document be proven, a person with an interest in an estate does not have an absolute right to this relief. To minimize unnecessary litigation, an applicant must meet a “minimal evidentiary threshold” before the Court will make such an order.
Diagnosis of Dementia Alone Does Not Determine Capacity
The Court of Appeal found that the application judge carefully reviewed the evidence before her and found that Nancy’s own actions in 2014 led to the dispute with her mother, which resulted in the execution of her mother’s revised 2015 Will. Further, the application judge carefully reviewed the evidence from the estate regarding the testator’s capacity after a 2015 dementia diagnosis.
The application judge found that the diagnosis did not come after a formal capacity assessment, nor did the testator’s doctor indicate that she lacked capacity. The application judge referred to jurisprudence which confirmed that a diagnosis of dementia on its own was insufficient to determine the issue of capacity as this could risk creating stereotypes for other individuals with mental health challenges.
Estate Not An ATM for Funding Litigation
Nancy argued that the motion judge decided the issue of capacity without a proper hearing by assuming the testator’s capacity regarding the 2015 Will and affidavit. However, the Court upheld the motion judge’s findings, confirming that the application judge appropriately applied the governing legal principles. The Court stated that the application judge carefully reviewed the evidence presented before her and based her decision on her factual findings. Therefore there was no reason for the Court of Appeal to interfere with her decision to dismiss Nancy’s application.
The Court of Appeal also upheld the motion judge’s decision to reject Nancy’s request to have the costs of her application paid out of the estate. The Court referenced a court from Justice Brown in Salter v. Salter Estate, which stated:
“Parties cannot treat the assets of an estate as a kind of ATM bank
machine from which withdrawals automatically flow to fund their litigation.”
The Court of Appeal ordered Nancy to pay the respondent partial indemnity costs of the appeal for $15,000.
Contact Campbell Litigation for Assistance with Estate Disputes and Litigation
The estate litigation lawyers at Campbell Litigation understand the complications and complexities that can arise after losing a loved one. Our team assists clients throughout the Kitchener-Waterloo area involved in estate litigation and provides trusted legal advice for those seeking to challenge a Will and those forced to defend actions against an estate. To speak with a member of our team, contact us online or call us at 519-886-1204.
