Ontario court uses Estates Act to allow production of document to validate as will

Tuesday, 09 April 2024
The Superior Court of Justice of Ontario has granted an application for the production of a draft will under section 9 of the Estates Act 1990 (the Estates Act).

Violet White (the deceased) made a will in 2014, for which the estate trustee applied for probate on the deceased’s death in 2022. The deceased’s son, Thorne White (the applicant) received only 10 percent of the deceased’s assets with the remaining 90 percent left to her other son Raymond White,along with the estate trustee (the respondents).

However, the deceased updated her will in draft form in 2021 and discussed it with a lawyer in 2022. She had an appointment to finalise the will with her lawyer, but died before she was able to review the draft and sign it. The applicant therefore sought permission from the court to disclose such documents belonging to the deceased that could be recognised as a will.

Under s.9 of the Estates Act, a court can order the production of “any paper or writing being or purporting to be testamentary.” With recent changes to Ontario’s Succession Law Reform Act (the Succession Act), courts now also have the power to recognise documents that are not properly executed as wills to be valid.

The court therefore had to consider if the scope of s.9 of the Estates Act has increased with the s.21 Succession Act amendments to allow a possible beneficiary to compel disclosure of documents in the possession of a lawyer, to see if they are sufficiently close to a will to be recognised as valid.

The court initially rejected the application, citing various concerns. Among other things, it noted that the applicant had not yet commenced a challenge to the 2014 will and sought document discovery before a cause of action had been established. It also expressed concerns about the meaning of the application for the scope of the Estates Act, saying: “It is one thing to look for a will. Looking for any piece of paper that one might later claim to be close enough to qualify as a will under [the Succession Act is] a very different matter.”

As a result, the court deferred consideration of the application to allow the applicant to respond with evidence and further legal submissions. He did so, bringing all the beneficiaries under the 2014 will as named parties. The respondents confirmed that they consented to the release of any documents, despite the fact that a new document might be to their detriment as beneficiaries, and the estate trustee confirmed he did not consider it a breach of solicitor-client privilege.

The court found that the applicant’s “amendments, new evidence, and the positions of the added parties,” along with his evidence of the existence of a written will document, addressed its prior concerns. It therefore allowed the disclosure of the documents in question. However, it made clear the parameters it had set out in considering the relationship between s.9 of the Estates Act and s.21 of the Succession Act.

“I wish to be clear that this decision is very fact specific,” the judge said. “In considering the relationship between s.9 of the Estates Act and s.21.1 of the [Succession Act], I am concerned about the risk of unleashing unintended or unanticipated consequences that may be harmful… I am not to be taken in this decision to be widening at all the scope of applicability of s.21.1” (White v White, 2023 ONSC 7286).

Commenting on the case, law firm Hull & Hull notes: “To date, Justice Myers’ decisions in White v White are the only reported cases addressing the interplay between section 21.1 of the [Succession Act] and section 9 of the Estates Act. Given the fact-specific nature of this case, it will be interesting to see the circumstances under which similar relief is granted in future cases.”


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