A recent Ontario decision, Martin v. Martin [1], considered the minimal evidentiary threshold required to obtain documentary discovery in a will challenge as set out in Seepa v. Seepa.  For further background on Seepa, read Rebecca Studin’s previous blog post on that decision.

In Martin, the Applicant (the named Estate Trustee) sought an order removing the Notice of Objection of the Respondent, his sister, to his appointment as Estate Trustee and issuing a Certificate of Appointment of Estate Trustee with a Will to him.  The Respondent, for her part, sought the production of their late mother’s (the “Deceased”) medical records and testamentary documents.

The Deceased was survived by her four children and various grandchildren.  She had executed both primary and secondary wills to govern her significant assets.  Both wills named the Applicant, her son, as Estate Trustee.  The secondary will gave the Estate Trustee sole and absolute discretion in determining the terms of a trust of which the Deceased’s children and grandchildren were the beneficiaries.  The wills also contained a provision that required each of the beneficiaries to confirm the validity of the wills by delivering a written acknowledgment.  The Respondent never delivered an acknowledgement but instead filed a Notice of Objection to her brother’s appointment.

After considering both Neuberger v. York and Seepa, Justice Pattillo found that the Respondent met the low threshold required at that preliminary stage to obtain documentary discovery for what was essentially a will challenge.

The Respondent’s evidence included an affidavit by her sister, the Deceased’s primary caregiver, that spoke of the Applicant’s influence over their mother. Her evidence also included an affidavit by the Deceased’s housekeeper that suggested the Applicant tried to influence his mother to change her wills.  The court also noted that the Applicant’s position, managing two family companies, put him in a position to potentially unduly influence his mother.  All told, the Applicant’s alleged involvement and participation in his mother’s estate planning raised questions that justified the production of the Deceased’s testamentary and medical records.

It will be interesting to see Seepa’s application in other will challenges.

Thanks for reading

[1] 2018 ONSC 1840