In a recent Ontario decision, a daughter who had been disinherited from her mother’s will, applied to court seeking disclosure of several testamentary documents. She alleged suspicious circumstances and a lack of capacity in the execution of the will.

Daughter Left Out of Mother’s Will

The testator passed away in August 2020 at the age of 99. She left behind three children: two daughters and a son. Her estate was worth approximately  $457,000.

The court issued a certificate of appointment of the estate trustee with a will to the youngest daughter in March 2021.

In her will, the testator had provided for the youngest daughter and her son.

The eldest daughter was left out of her mother’s will entirely.

The testator’s eldest daughter applied to court seeking disclosure relating to the estate of her late mother, including medical records, financial records, and the notes and files of the lawyer who prepared the testator’s last will.

Daughter Alleges Suspicious Circumstances and Seeks Disclosure

 In essence, the eldest daughter claimed that the circumstances surrounding the execution of her mother’s will in 2015 were highly suspicious. She contended that the testator’s previous will, signed in 2007, had provided for the three children equally. She described the testator’s decision to disinherit her as “inexplicable.” She also believed there was evidence that the testator lacked the capacity to execute the will.

As one of the testator’s children, she submitted that she had an interest in the estate and was entitled to seek production of relevant disclosure.

Executor Objects to Disclosure of Documents

The executor, who was also the testator’s youngest daughter, submitted that there was no basis for the eldest daughter’s disclosure request, which she characterized as a fishing expedition. Additionally, the executor stated that the eldest daughter had already been provided with a copy of the testator’s will, copies of her powers of attorney, and other documents.

Finally, the executor noted that the eldest daughter was very aware of why the testator had disinherited her. Affidavits were presented explaining that the eldest daughter had committed certain actions with regard to the testator’s investment accounts without her consent and, on at least one occasion, had been verbally abusive. The affidavits were provided by multiple parties, all refuting the eldest daughter’s claim that her disinheritance was without explanation.

Additionally, evidence was presented to rebut the eldest daughter’s claim that the testator had lacked the capacity to execute the will.

Court Refuses to Order Disclosure

The court began by explaining that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. Further, a court must measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it.

With regard to the eldest daughter’s request for disclosure, the court ultimately held that she had not met the minimal evidentiary threshold that is required for the disclosure order she was seeking. It found ample evidence to support the testator’s decision to disinherit her and found no evidence to support a finding of incapacity or undue influence.

In the result, the court, therefore, dismissed the eldest daughter’s request for disclosure, stating:

“[The testator]’s estate should not be put to any further expense or delay as a result of the issues raised by the [eldest daughter], which I find have been satisfactorily answered by the executor.”

Contact Campbells LLP for Experience Advice on Estate Matters

At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matters since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective. Contact us online or at (905) 828-2247 to learn more about our services.