DISCOVERY
To order evaluation would have unduly violated son’s autonomy
Testatrix had one son who suffered from various disabilities. Testatrix prepared will under which most of her estate was to become trust property for benefit of son. Estate trustee was to administer trust in his sole discretion during son’s lifetime. Upon son’s death, residue was to be distributed “to any and all worthy individuals and or causes” at trustee’s discretion. Testatrix passed away some five years after making will. Son brought application for declaration that gift over of residue of trust assets failed for uncertainty of objects and for order directing estate trustee to pay entire capital of trust and any interest to son. Trustee brought cross-application for order directing assessment of son’s capacity. Application granted in part; cross-application dismissed. Appointment of assessor to conduct psychiatric examination was substantial intervention into privacy and security of individual. Court lacked jurisdiction to order assessment under Substitute Decisions Act, 1992 (Ont.), given that no proceeding had been commenced under that Act. Further, there was no evidence of reasonable grounds to believe son was incapable. It was not appropriate in these circumstances for court to proceed under s. 105 of Courts of Justice Act (Ont.) (CJA), to order mental examination of son against his will. Concerns that s. 105 of CJA sought to address, such as levelling playing field between opposing litigants, should not be at issue in proceeding of this nature. There were no concerns raised that son was party under disability and therefore in need of litigation guardian. To order evaluation would have unduly violated son’s autonomy.
Stoor v. Stoor Estate (Nov. 3, 2014, Ont. S.C.J., Himel J., File No. 05-64/14) 247 A.C.W.S. (3d) 978.
