All About Estates

Disclosure of Medical Records: Privacy Matters

In Gilbert v. Girouard, 2023 ONSC 4445, a brother and sister brought a challenge to their father’s wills. The siblings alleged that their third sibling, who was named as estate trustee, exerted undue influence over their father. They also alleged that their father lacked testamentary capacity at the time of signing the wills. In order to gather the necessary evidence to support their claim, the siblings brought a motion to compel disclosure of their father’s medical records. The court refused to grant the motion: their father’s privacy took precedent over the siblings request.


The deceased father executed wills in 1979 and 1985. These two wills benefited his three children equally. On September 28, 2021, the deceased executed two new wills, both of which benefited his one child (the respondent) to the exclusion of the other two (the applicants).

In November 2019, the deceased was diagnosed with cancer. He only shared his health condition with the respondent: the applicants only found about their father’s cancer from their sibling at a later date.

In early 2020, the respondent moved in with the deceased to help him through his illness, including attending all of his medical appointments. The deceased died on April 1, 2022.

Motion to Disclose Medical Records

The applicants sought disclosure of their father’s medical records going back to January 1, 2020, when the respondent moved in with him. The applicants asserted that these records were needed in order to determine whether their father had testamentary capacity when he executed his wills. They also alleged that the medical records may contain evidence of undue influence.

The court was unconvinced by the applicants’ arguments. Justice H. M. Pierce dismissed the motion. As she set out, the medical records for the time period between when the wills were executed and when the father died were irrelevant, because determining testamentary capacity in relation to wills happens at the time of giving instructions and execution of the will, not at any time after this has happened. Incapacity after execution but before death does not matter. Furthermore, the court held that the father’s decision not to tell the applicants about his cancer diagnosis was no mistake. The decision suggested that he was the type of person who valued privacy about his personal life, even when it came to his own children. If the father himself did not want to tell his children about his serious diagnosis, the court held that it should be able to mirror his wishes regarding privacy. To share this information with people whom he did not share it with in the first place would be an intrusion of his privacy and may lead to his children having negative memories of their father.

In support of its conclusion, the court quoted Seepa v. Seepa, 2017 ONSC 5368: “There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.”

Lastly, the court found that the disclosure of the deceased’s solicitor’s file provided the parties with sufficient evidence. The drafting solicitor’s file included information about meetings he had with the deceased, the circumstances of these meetings, the people who were present, the deceased’s knowledge of his assets, and recognition and reasons for excluding the applicants from the wills. It also included information about the solicitor’s consideration of the deceased’s capacity during the period of making the wills.

Given the conclusion that the solicitor’s file was enough to answer any questions regarding the deceased’s incapacity, the court held that production of the deceased’s medical records was simply a “fishing expedition.”

About Jonathon Vander Zee
Jonathon Vander Zee is an articling student with de VRIES LITIGATION LLP.


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