In a recent dispute between a disinherited daughter and her late mother’s estate, an Ontario court refused to order the disclosure of the testator’s records as to do so would subject her estate to unnecessary expense and delay.

Applicant sought disclosure order based on allegation late mother lacked capacity to make will

The testator in Johnson v. Johnson passed away in 2020 at the age of 99. Her will, which was created in 2015, disinherited the applicant (her daughter). The applicant acted as her mother’s attorney for property and personal care from 2004 to 2014.

The applicant alleged her mother lacked capacity to make the will in 2015. In January 2021, she served a notice of objection seeking an interim preservation order to stop the executor (her sister) from dealing with the estate. This was unsuccessful, and the executor was granted a certificate of appointment of estate trustee with a will in March.

The applicant went on to seek a disclosure order for her mother’s medical records, financial records, and the notes and files of her mother’s lawyer, who prepared the will on the grounds these records were required to prove the validity of the will.

Minimal evidentiary threshold required for request to prove testamentary instrument

The court explained the “special responsibility” owed by courts to testators who are not present to express their own wishes. Where an applicant requests some relief from a court to help prove a testamentary instrument, a “minimal evidentiary threshold” is required to prevent the estate from exposure to needless expense and litigation. This is particularly so given the devastating effect unnecessary litigation can have on smaller estates. The court also noted the inherent unfairness of requiring an estate trustee to defend a testamentary instrument “simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.”

Court refused to put estate through delay and cost of disclosure as minimal evidentiary threshold not met

The court found the applicant in Johnson failed to meet the minimal evidentiary threshold for the disclosure order on the grounds it would subject the estate to unnecessary delay and cost. It found the executor had already satisfactorily addressed the applicant’s issues, and therefore no further disclosure was required. The court noted the evidence clearly demonstrated the reasons for the testator’s decision to remove the applicant as a beneficiary in the 2015 will.

Prior to her removal as her mother’s attorney for property in 2015, the applicant had become joint owner of several of her mother’s investment accounts and transferred them to Calgary without her mother’s authorization.

When the applicant failed to provide an accounting upon the demand of the testator’s lawyer, the testator removed her as her attorney for property. She also sued the applicant to regain control of the investment accounts. The court heard that this process was stressful and expensive for the testator and caused her to disinherit the applicant “financially and emotionally”.

The court rejected the applicant’s allegations that the testator’s decision to disinherit her was “inexplicable” and the will was created under “suspicious circumstances”. It found the applicant was well aware of the reasons behind her removal as beneficiary and noted the testator’s decision to make the new will in August 2015 was “rational and entirely understandable” given the applicant’s actions.

No evidence of lack of capacity or undue influence at time testator made will

The court also ruled the testator had capacity to make the 2015 will as she remained knowledgeable about her finances, even after being diagnosed with dementia in April 2015. The executor advised the court her mother remained able to manage her affairs until late 2018.

The testator hired a lawyer in April 2015 to file an application to remove the applicant as the joint owner of the investment accounts. This lawyer reported to the court in this case that he had no concerns about the testator’s capacity at that time, nor did he have any concerns about anyone placing undue influence on the testator to make the 2015 will. He stated the testator had been “clearly perplexed” about the liberties taken by the applicant with the investment accounts.

The lawyer found the testator to be a “very sharp person” who fully understood the financial documents she reviewed with him, was aware of her wishes, and specifically knew how she wanted her investments to be handled by her bank. He reassured the court that as he had been practicing law for over 20 years, he was attuned to potential issues of capacity, undue influence, and duress.

While the court found the lawyer’s statements did not prove the testator had the capacity to make her new will four months after that meeting with the lawyer, it did contradict the allegation that the testator lacked capacity to make a will immediately following her dementia diagnosis.

The court found the evidence demonstrated the applicant and her mother remained estranged after the testator was forced to start a court proceeding to rectify the applicant’s actions regarding the investment accounts. The evidence did not demonstrate any undue influence on the testator’s decision to create the new will in 2015.

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