In Papak v. Papak, the deceased had executed a will in 2002 leaving everything to the defendants.  In 2006 the deceased executed a new will leaving everything to his sister in law that cared for him.  The plaintiff refused to answer questions in discovery relating to her actions as power of attorney for property as they were not relevant to the issue of the validity of the 2006 will.

The plaintiff argued that compelling her to answer questions on her action as attorney under power of attorney for property was not relevant.

Justice Pope held that the plaintiff’s evidence regarding her conduct during the time before the 2006 will was executed and after including during her time as attorney under power of attorney for property was relevant and therefore discoverable: concluding: “The trial judge must hear all the evidence relating to the plaintiff’s conduct including the period of time she exercised the powers of attorney” and it would be up to the trial judge to determine its relevance.  It was a significant factor in reaching this conclusion that earlier in the proceedings an Order for Directions appointing an estate trustee during litigation (ETDL) allowed the ETDL to request banking records with no date restrictions and it was those banking records that the defendant was asking the attorney under power of attorney for property about in discovery.  Because no date restrictions were put in place this left it open to the court to find all the records and therefore questions about them relevant for discovery purposes (even under the new rule).

Lesson Learned: watch out for the broadly worded Order for Directions seeking production from third parties: if too broad limiting questions on discovery may be difficult.

Until next time

Jasmine Sweatman