A recent Saskatchewan case highlights how will challenges vary by province to province as does the evidentiary threshold required under each jurisdiction. For example, in Saskatchewan, an applicant/challenger must go through two levels of hearings; a threshold Chambers hearing (a judge reviews the written record to determine if there is sufficient merit in the application to warrant a trial) and if the applicant is successful meeting the first threshold, the second stage is the trial hearing. This two-step process is designed to address the cost and delay associated with frivolous will challenges.
In a recent case, the court dismissed a request for third party records prior to the Applicant pursuing an order for trial.
Background
The Deceased executed her last will and testament (the “Will”) less than a year before her death. The Deceased named her friend as the executor and sole beneficiary of her estate. The Deceased’s brother (the “Applicant”) challenged the Will on the basis of undue influence and lack of testamentary capacity.
The Applicant brought an application seeking, amongst other things, the Deceased’s medical records and solicitor records prior to pursuing an order for trial. The Applicant argued that he needed this disclosure before pursuing the first step of the will challenge (i.e. the Chambers threshold level). The executor (the “Respondent”) filed evidence addressing the capacity and undue influence allegations including a MAID-related capacity assessment made one month prior to the Deceased’s Will.
Decision
The Court dismissed the application for the production of third party records. Providing a comprehensive review of the applicable law, the court noted the different approaches taken on a request for production prior to the first stage threshold of a will challenge.
Justice Robertson found that production at first stage is rare and requires a sufficient evidence to raise credible issues regarding incapacity and undue influence. In the evidence before the court, the Respondent’s reply record includes evidence of the Deceased’s capacity. Other evidence pointed to the Deceased’s estranged relationship with the Applicant, and general independence at the time the Will was made, including solo travelling.
Justice Robertson wrote
“An applicant to have a will proved in solemn form is expected to have evidence supporting their challenge to the validity of the will at the time of application. If they do not have sufficient evidence to satisfy the threshold test, they should not file the application. As with other court applications, the parties are expected to put their best foot forward in the materials filed. They ought not to rely on something fortuitously turning up later. “Taking a flyer” wastes the Court’s time and causes unnecessary delay and expense to the parties.
The Applicant was not prepared to proceed with this part of his Application, saying he needed disclosure from the Executor to find evidence in support of his claims. This is revealing in that there is an implicit admission by the Applicant that he does not have sufficient evidence to cast doubt on the validity of the Will or, at least, is not confident that he can do so at this time.”
Additionally, the Applicant’s medical record request was too broad, (i.e. all of the Deceased’s medical records dating back ten years before death). The application for production of third party records was dismissed with costs reserved and the main application to prove the will in solemn form was adjourned sine die.
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