Canadian court decision addresses minimal evidentiary threshold in estate litigation

Tuesday, 05 December 2023
The Superior Court of Justice of Ontario has considered the minimal evidentiary threshold required to proceed with a will challenge in the province, setting out the evidence needed to satisfy the threshold as well as the evidence that is not considered relevant to the court.

Larry Dinally (the applicant) challenged his father’s (the testator’s) will on the grounds of lack of testamentary capacity and undue influence. The testator’s original will left his estate in equal parts to his children: the applicant and Yasmin Dinally (the respondent). Six months before he died, the testator changed his will to exclude the applicant and leave the whole estate to the respondent.

The court heard that a year prior to his death, the testator had met his long-term family lawyer to discuss transferring his house into joint ownership with the respondent. The lawyer refused to do so, as he did not believe it reflected the true testamentary intention of the testator. The respondent engaged a different lawyer, who transferred the property into joint tenancy and then a few weeks later severed the joint tenancy when the testator changed his mind.

Medical records show that the testator had early dementia, although his doctor believed that he had capacity when transferring the house into and then out of joint tenancy. The records also note the testator complaining to doctors about the respondent controlling his life, taking away his phone and television and leaving him housebound. The court noted that “around the time that he changed his will to disinherit the applicant, [the testator] told his doctor that [the respondent] controls his life.”

The court examined the evidence against the threshold required to make the challenge to the will admissible. “Evidence needs to be relevant,” it said. “It needs to make more or less likely an inference that a fact exists or existed. Subjective speculations whose relevancy hinge one [sic] one’s predisposition to find the alleged influencer evil, are of no assistance to the task at hand. That is why these motions should be easy and the lengthy historical litanies of events, that can only be relevant when accompanied by purely speculative assumptions, are of no help.”

The court found that the applicant provided “simple facts that were not readily disputed”, including the evidence of the family lawyer and the doctors, as well as the fact that the testator had changed his mind around the joint tenancy. It therefore ruled that there was sufficient evidence of both undue influence and (to a lesser degree) issues of capacity to proceed to trial, as well as awarding costs to the applicant (Dinally v Dinally, 2023 ONSC 6178).


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