While a testator may do everything they can while they are alive in an effort to set up their estate for easy distribution, they cannot prevent someone from challenging their will after they pass. Sometimes individuals who believe that they should have been included in the will as a beneficiary choose to contest a will when they discover that they have been excluded.

A recent decision from the Court of Appeal for Ontario provides guidance on why someone might choose to challenge a will and highlights the limitations they might face when trying to obtain evidence in support of their position.

One of Three Siblings Excluded From Will

The case of Johnson v. Johnson came about when three siblings found themselves in a dispute over their late mother’s will. The testator had three children, namely Janice, Hugh, and Nancy. She executed her will on August 12, 2015 and passed on August 23, 2020, leaving an estate with a value of approximately $457,000. Upon reading the will, Nancy discovered that she had been excluded from the will, while her siblings received equal portions of the estate.

Nancy commenced an application under Ontario’s Rules of Civil Procedure stating that there was evidence to suggest that her mom lacked the necessary capacity to execute the 2015 will and claimed it was invalid. Nancy stated that she was included in her mother’s 2007 will and that her exclusion from the 2015 will was an inexplicable marked change. Nancy sought an interim order from the court in order to prevent the estate from being distributed pending the outcome of the matter. She also sought the production of medical, financial, and legal documents which related to her mother in order to support her position.

During the initial hearing, the application judge referred to the framework established in a 2016 Court of Appeal of Ontario decision of Neuberger v. York (“Neuberger”) in concluding that Nancy had not met the minimal evidentiary threshold needed to provide the documentation she requested.

The Neuberger Approach

Neuberger confirmed that a court “has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved.” The decision also set out that “some minimal evidentiary threshold” must be met before a court will permit a will challenge.

To meet the minimal threshold, an applicant must point to some evidence they already have, which if accepted, would call into question the validity of the will. Should the applicant fail to do so, or if the responding party successfully answers that challenge, the motion should be dismissed. Only if the applicant provides that evidence and it is not successfully responded to shall the court open the doors to challenging the will.

Has the Evidentiary Burden Been Met?

Nancy claimed that the application judge accepted her siblings’ evidence as a successful answer to her concerns. However, the Court of Appeal was critical of this approach, stating that:

“At its core, Nancy’s submission amounts to an invitation for this court to reweigh the evidence and make different findings without pointing to any reversible error that would warrant appellate intervention. That is not our task.”

The Court found that the application judge carefully reviewed the evidence of both parties and was simply not persuaded by Nancy’s evidence that being excluded from the 2015 will was enough to prove a lack of capacity.

Court of Appeal Finds Testator was “Very Sharp”

The Court of Appeal was satisfied with the application judge’s finding that the evidence provided by Nancy’s siblings justified the change in wills. The siblings highlighted a conflict which had occurred between Nancy and her mother in 2014 when Nancy was acting as her mother’s attorney for property and personal care. During that time, Nancy had appointed herself as a joint beneficiary of her mother’s investments, and when her mother found out, she demanded an accounting of her financial assets which Nancy did not provide. The siblings also told the Court that Nancy and her mother argued significantly in 2014, which contributed to the subsequent will revisions in 2015.

The Court found that Nancy had failed to provide any evidence that her mother lacked capacity, and reiterated that the mere fact that she was excluded as a beneficiary in the 2015 will was not sufficient to support her position. The evidence which was provided to the Court by the siblings seemed to suggest that the testator was aware of what she was doing with her will in 2015 and that she was “very sharp.”

Ultimately, the Court of Appeal found that the application judge’s analysis of the Neuberger approach was satisfactory and Nancy’s appeal was dismissed.

Derfel Estate Law in Toronto Assists Clients in Matters Regarding Will Challenges

At Derfel Estate Law, our lawyers understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed, particularly when family members are at odds. Our experienced team of estate lawyers remain up to date on estate administration requirements and have extensive experience assisting clients with issues that arise when a will is challenged. Contact us by phone at 416-847-3580 or reach us online to schedule a consultation.