Many people might not be aware, but when an estate goes to probate, the details of the court’s work to authenticate the deceased’s will becomes part of the public record. Similar to other proceedings before the courts, only in certain circumstances can details be withheld from the public. The Supreme Court of Canada has recently released a judgment about one such situation in which the beneficiaries and trustees of billionaires Barry and Honey Sherman sought to keep details of the probate sealed from public access.

Murder of slain couple is still unsolved

Barry and Honey Sherman, a prominent couple known later in their lives for their philanthropic work, were found dead in their Toronto home in 2017. Since then the identities and motives of those involved in their murder remain unknown. In the years following the murders, media and public speculation has not quieted. As a result, the estate’s trustees sought sealing orders of the probate files. The sealing orders were granted initially, but a journalist reporting on the case challenged the order. However, the application judge concluded that the harmful effects of the sealing order were substantially outweighed by the “salutary effects on privacy and physical safety interests.” However, the Court of Appeal ruled that the sealing order should be lifted, concluding that there was no real risk to anyone’s physical safety should the order be lifted.

Did the estate trustees establish a serious risk?

The court stated that while open courts can be a source of inconvenience and embarrassment, these types of discomforts are not generally enough to overturn the strong presumption of openness. Only in cases where there is a significant risk to privacy and physical safety can the presumption of openness be set aside.

The court went on to say that court openness is protected by Canada’s constitution and is essential “to the proper functioning of Canadian democracy.”

However, as mentioned earlier, there can be instances when court proceedings are closed. The court laid out the test that the party seeking a sealing order must pass. The test requires the establishment of three factors:

  1. Court openness poses a serious risk to an important public interest;
  2. The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
  3. As a matter of proportionality, the benefits of the order outweigh its negative effects.

The court applied the test to the case at hand and determined that the risk to dignity was not serious, and that the information contained in the probate file does not reveal anything particularly private or highly sensitive. Finally, there was no indication of a risk of physical harm to anyone. This last step, the court said, would have been necessary even if there had been a demonstrated risk to privacy.

The court concluded that the probate files should be made public and that the sealing order would be lifted.
Experienced trusts and estates lawyer, Lex Arbesman, provides unparalleled personal guidance with your estate planning needs. Understand your options, minimize your legal and financial risks, and protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.

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