Revised will made after family dispute need not be proved in solemn form: Ontario Court of Appeal

A judge was entitled to reject claims that a testator’s change to her will after a falling out with one of her children was inexplicable and that the testator might have lacked capacity, the Ontario Court of Appeal has ruled.

The case of Johnson v. Johnson, 2022 ONCA 682 arose from an estate dispute among the testator’s three children. The mother died in August 2020 at 99 years old. She left a will, which was executed in August 2015 and divided her estate of around $457,000 between the respondents.

The appellant, one of the children, brought an application under r. 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the 2015 will to be proved in solemn form. She asked for an interim preservation order to prevent the estate’s distribution pending the disposition of her application and the production of medical, financial, and legal documents regarding her mother.

The appellant claimed that there was evidence suggesting that the 2015 will was invalid, the circumstances surrounding its execution were highly suspicious, her disinheritance was an inexplicable change from the testator’s 2007 will that treated her children equally, and there were reasonable grounds to believe that her mother had lacked capacity to alter the 2007 will. 

The respondents alleged that the appellant had a serious conflict with the testator in 2014 due to her actions as her attorney for property and personal care, including appointing herself as joint beneficiary of her mother’s investments and failing to provide an accounting. The testator initiated litigation against the appellant and the financial institution holding the investment accounts at the time, the respondents said.

In January 2022, Justice Heather Williams of the Ontario Superior Court of Justice dismissed the application using the analytical framework provided in Neuberger v. York, 2016 ONCA 191 and explained in Seepa v. Seepa, 2017 ONSC 5368.

The application judge concluded that the appellant failed to meet the minimal evidentiary threshold of “some evidence” that called into question a will’s validity and that the responding party failed to successfully answer, that would be required before the court could exercise its discretion to require proof of the 2015 will in solemn form and to expose the estate to expense and litigation. She determined that the totality of the evidence disclosed a rational and understandable reason for the testator to prepare a new will removing the appellant as beneficiary.

The application judge rejected the appellant’s claims, accepted the respondents’ evidence, and also accepted the evidence of the testator’s caregivers that the appellant was abusive to her mother during a June 2015 telephone conversation.

Decision correctly applied Neuberger: Ontario appeal court

The appellate court dismissed the appeal. The application judge applied the correct approach from Neuberger and properly decided that the appellant’s evidence, even if accepted, was insufficient to call into question the 2015 will’s validity and the respondents successfully answered any challenge, the court said.

The appellant argued that the application judge wrongly applied Neuberger by accepting the respondents’ evidence as a full and successful answer to her evidence challenging the 2015 will’s validity. In response, the appellate court held that this argument amounted to an invitation to reweigh the evidence and to make different findings without identifying any reversible errors justifying appellate intervention.

Next, the appellate court ruled that the application judge made no legal errors in assessing the evidence relating to capacity, including an April 2015 letter written by the testator’s doctor. The letter, which provided a dementia diagnosis, stated that the testator could understand “a simple form and its implications if they were explained to her.” The letter did not constitute a formal capacity assessment and did not say that the testator lacked capacity, the court noted.

The application judge was entitled to find that the appellant’s description of her mother’s abilities was exaggerated and to instead rely on the respondents’ affidavit evidence that the testator was capable and competent to manage her own affairs until late 2018, the appellate court said.

Lastly, the appellate court rejected the appellant’s assertion that the application judge should not have dismissed her application without the production of the requested medical, financial, and legal documents and without the calling of further evidence from the testator’s advisors.

According to the appellate court, this argument defeated the practical purpose of Neuberger’s minimal evidentiary threshold, which aimed to avoid subjecting an estate to the needless expense and delay of a “disgruntled” relative’s fishing expedition.

The appellant’s contention also undermined Neuberger’s policy concerns to the effect that the court should prevent the claimant from depleting an estate and delaying its administration by seeking documentary discovery or other directions unless they met the minimal evidentiary threshold.