November 19, 2019

What is the minimum level of evidence to be met before a court allows a will challenge to proceed? The recent Ontario Superior Court of Justice decision in Naismith v. Clarke, 2019 ONSC 5280 (“Naismith”) sets out a useful overview for the circumstances under which a court may allow a will challenge to move forward.


Joseph Clarke, the deceased, died on April 24, 2018. On April 6, 2017, he signed a will leaving his estate to his adult daughter, with his adult sons named as contingent beneficiaries in the event his daughter pre-deceased him. All parties recognized that there was a long-standing strained relationship between the sons and their sister.

When the deceased died and was survived by his daughter, his sons contested the validity of the will on the basis that:

  1. the will was a product of undue influence by the daughter;
  2. the deceased lacked testamentary capacity; and/or
  3. the deceased failed to know and appreciate the contents of the will.

The daughter brought a motion to set aside the sons’ application on the basis that it failed to meet the minimal evidentiary threshold. Although not expressly cited in the decision, it appears the daughter relied on the reasoning in Seepa v. Seepa, 2017 ONSC 5368 (“Seepa”).


Did the sons’ application meet the minimum evidentiary threshold to support the will challenge?


Justice McArthur accepted the drafting lawyer’s evidence that the deceased had testamentary capacity and that he knew and approved of the contents of his will. His Honour noted that the drafting lawyer had met several times with the deceased and found that the deceased was “sharp, made decisions of his own volition, understood the extent of his assets, his responsibilities and the effect that his Will and power of attorney would have.”[1] The sons did not put forward any evidence to contradict the drafting lawyer’s evidence. As a result, his Honour concluded that “no minimal evidentiary basis remains supporting a lack of testamentary capacity or his failure to know and appreciate the contents of his Will.”[2]

However, Justice McArthur reached a different conclusion with regards to undue influence. On that issue, the Court held that a presumption of undue influence arose because of the potential for domination existing within the daughter’s relationship with the deceased. While Justice McArthur placed no weight on the sons’ “bald and conclusory”[3] statements, he nevertheless found that “on this record, no satisfactory determinations can be made one way or the other nor can the presumption be rebutted either way. The matter also requires more than a limited weighing of the evidence presented in this regard.”[4]

As a result, his Honour concluded that the sons’ allegation of undue influence met the minimal evidentiary threshold.


The Court held that the sons did not meet the minimum evidentiary threshold for challenging the deceased’s testamentary capacity, but did meet the threshold with respect to undue influence. As a result, the daughter’s motion to set aside the will challenge was denied and the sons were free to move forward with their application.


This case is one of many recent decisions regarding the minimum threshold to be met before a party will be allowed to proceed with a will challenge. As stated by Justice Myers in Seepa, “At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given the tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.”[5]

In this case, Justice McArthur allowed the will challenge to proceed on the basis of finding red flags of undue influence, but specifically held that no other red flags existed. Undue influence is notoriously difficult to prove and will challenges are rarely successful on the basis of undue influence alone. Among other things, as set out in Seguin v. Pearson, 2018 ONCA 355, the party challenging the will cannot rely on a presumption of undue influence (which only exists for inter vivos transfers) and must prove that undue influence existed on a balance of probabilities. Now that the will challenge may move forward, it will be interesting to see if the parties challenging the will are able to discover enough evidence to support a finding of undue influence or evidence supporting the other grounds for challenging the will (i.e. lack of testamentary capacity and lack of knowledge and approval).

[1] Naismith at para 36.

[2] Ibid.

[3] Naismith at para 50.

[4] Naismith at para 48.

[5] Seepa at para. 35.