Canadian court balances medical privacy with allegations of undue influence

Tuesday, 12 September 2023
The Superior Court of Justice of Ontario has refused to grant a motion compelling the disclosure of a deceased man’s medical records, ruling that maintaining his privacy outweighed the request of the applicants.
magnifying glass files

Philip Gilbert (the deceased) died in 2022, survived by his three children, Christopher Gilbert and Ruth Tucker (the applicants) and Karen Girouard (the respondent). The deceased made several wills in his lifetime. His first will, created in 1979, left his estate to his wife and, if she predeceased him, the residue equally between the children. In 1985, he made a second will naming his brother as estate trustee and his son as alternate trustee. The residue was again given equally between the three children.

In 2021, the deceased made two new wills, one for corporate assets and one for personal assets. Both named only the respondent as the beneficiary of the estate and made no provision for either of the applicants.

The deceased was diagnosed with cancer in 2019 and informed only the respondent, who moved in with him in 2020 to assist with daily life and care arrangements. The applicants were not informed of the deceased’s diagnosis until a later date.

The applicants asked the court to disclose the medical records of the deceased between 2020 and 2022. They claimed that the records would be relevant to the deceased’s capacity when executing the 2021 wills and determining if the respondent had exerted undue influence over the deceased.

The court dismissed the application. It noted that medical records for the period after the wills were signed, between September 2021 and the deceased’s death in April 2022, were irrelevant, pointing out: “It is settled law that the relevant time to determine testamentary capacity is at the time of giving instructions and executing the will…Subsequent incapacity does not invalidate the will.”

Regarding the earlier period of time, the court observed that the deceased made a clear decision not to share his cancer diagnosis with the applicants and that it should therefore exercise caution in releasing medical details that he had chosen to conceal: “Not only would it be a gross intrusion on his privacy, the disclosure might have negative consequences for the memories the children carry of their father.”

The court further noted that the solicitor’s file on the 2021 wills comprehensively answered questions about capacity without needing recourse to medical records. The file fully documented meetings and communications and who was present, as well as the deceased’s knowledge of his assets, rationale for the preparation of two wills and understanding that the applicants would be excluded. The file also documents the solicitor’s consideration of the deceased’s testamentary capacity and potential undue influence both during the communications and when the wills were executed. Further, the wills fulfilled all the requirements for validity under the Succession Law Reform Act 1990.

The court found that the applicants did not meeting the test for questioning the presence of undue influence. It agreed with the previous judgment in Seepa (2017 ONSC 5368), in which the judge said, “There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.”

Accordingly, the application was dismissed (Gilbert v Girouard, 2023 ONSC 4445).


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