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What is the minimal evidentiary threshold in Will Challenges?

The Ripple effect of  Neuberger Estate v. York

The system was broken. It had to be fixed. But, has the pendulum swung too far?

The current system allows anyone who appears to have a financial interest in an estate to challenge a will for minimal costs by giving notice of their objection. All that is required is the filing of a one page document called a “notice of objection”.1 This is often a boiler plate document alleging that the will-maker did not have capacity, did not know or approve of the contents of a will or was unduly influenced. At this stage, no evidence has to be provided and the application for probate will be temporarily derailed.2 To get it back on track, the executor has to proceed to court and either seek an order to vacate the Notice of Objection and dismiss the will challenger’s claim or alternatively embark on a long process to resolve any questions regarding the validity of the will.

This process can last years and cost hundreds of thousands of dollars to deal with what are sometimes baseless, frivolous will challenges totally devoid of merit. These will challenges often succeed in grey mailing legitimate heirs into giving up a portion of their inheritance to avoid the costs and delay of litigation. It has become an effective weapon of attrition. In part, these cases have been allowed to proceed because up until recently, the case law supported the proposition that prior to probate being granted an Interested Person is entitled, as of right, to have the will proved in solemn form.3

In his article entitled, “The Case for Probate: Not Just a Tax”4, Arieh Bloom explains,

“There are two fundamental processes by which probate can be granted: proof of a will in common form and proof of a will in solemn form or per testes. Common form probate is the process by which a court certifies the validity of a will on an uncontested basis…. Common form probate relies on the presumption that a will is valid if it is duly executed. There may be no necessity for positive evidence of due execution other than the signatures on the will of the testator and witnesses to enable probate to be granted….proving a will in solemn form “is the procedure leading to a declaration by a court that a will is the last will of a person” and “is a declaration which can be relied on by all the world and, therefore, commands full evidence before the court when any issue of validity has been raised.” When a will is proved in solemn form the onus is on the executor, to propound the will in open court, by demonstrating that the testator executed the will, had testamentary capacity when executing the will, the testator had knowledge of and approved the contents of the will, and the will has not been revoked. (emphasis added)”

The rationale for this “right” was articulated by Justice Price in McLaughlin Estate v. McLaughlin.5

“Often, medical information, or a drafting lawyer’s file, including his/her notes, that would disclose whether a testator had testamentary capacity, or whether the lawyer read the will to the client, or whether undue influence was exercised, is not available to the deceased’s family. This information is essential in determining whether a will is valid. It would be unfair to dispose of the potential beneficiaries’ right to have a will proven in solemn form when they did not have this important information disclosed to them. It must be remembered that the testatrix, being the party whose disposition of property is at issue, is unable to participate in the proceeding. In these circumstances, the proceeding cannot be treated like a regular civil motion insofar as rules of proscription are concerned. Rather, a presumption must be applied in favour of allowing children to have a parent’s will proven in solemn form.”

The accepted wisdom that a person with an apparent financial interest, “as of right” could compel an executor to prove a will in solemn form was revisited by the Court of Appeal for Ontario in Neuberger Estate v. York (“Neuberger”).6

In Neuberger one of the daughters and a grandson of the deceased commenced a will challenge. Given their apparent financial interest they argued it was their right to have the will proven in solemn form.  The original motion judge found that the grandson had no independent knowledge of the estate, its assets, previous wills and pertinent information about his grandfather’s estate planning. The motion judge also found that the grandson did not have a close relationship with his grandfather and he had no real explanation for why he would challenge the Will. The motion judge then analyzed Rule 75.01 and concluded that it was discretionary in nature permitting, but not obligating a judge to require that a will be proven in solemn form.

In hearing the case, the Court of Appeal analyzed Rules 75.04, 75.05 and 75.06 concluding a person who appears to have a financial interest has the right to request formal proof of the testamentary instrument.7 But, the Court of Appeal distinguished between the applicant’s right to request and the will challenger’s right to require the executor to prove the will in solemn form. More importantly, the Court of Appeal outlined the policy reasons for the change in direction.8

“….. In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require 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.

…. an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).

This approach gives meaning to both rule 75.01 and rule 75.06(3). It also meets the concern about potentially needless depletion of estates.”


Neuberger is good news for executors facing a baseless will challenge. However, does it unfairly snuff out potentially meritorious claims as well? In our view – that depends on what meets the “minimal evidentiary threshold”. One of the first times that question was addressed was in Seepa v. Seepa (“Seepa”).9

The Seepa decision seems to be a rejection of what had become the normative practice of estate litigation in Toronto. Justice Myers refused to sign a consent order which provided for the production of testamentary documents, solicitor’s files and the deceased’s medical records. He explained:

“In the estates court in Toronto motions for directions are routinely brought on consent in will challenges. The fact pattern in these cases is almost always the same. The applicant has been cut out of a will or has been gifted less than he or she believes was due. Of course, the beneficiary who obtains “more” is usually the one who cared for, or at least spent comparatively more time with the deceased. This lets the disgruntled applicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue influence to induce the deceased to make an unfair distribution of the estate.

The standard form orders for directions routinely granted on consent in these cases consign the parties to lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more. The orders are all or nothing. There are few orders that seem to be tailored to the needs of the individual case. Ongoing case management is generally not provided for.

One wonders whether, in the absence of evidence supporting the causes of action and a need for such extensive processes, there is good reason to subject not just the parties but all of the beneficiaries in these cases to the cost, delay, and distress of lengthy proceedings. The disputes delay distribution of bequests to all of the beneficiaries while a disgruntled relative conducts a fishing expedition and often a deep dive through the deceased’s privileged legal files and most private, personal medical records.

Is it time for a culture shift?10

In Seepa, the deceased disinherited her oldest child and left her entire residue to her younger son who had taken care of her and looked after her on a day to day basis. In contrast, the mother told her lawyer that her oldest son was unhelpful and unreliable.

After reviewing the facts, Justice Myers refers to Neuberger and assesses whether the oldest son who challenged the Will met “some minimal evidentiary threshold”. Counsel were unable to locate any cases in which this phrase had been considered.11 Justice Meyers referred to Neuberger for guidance where Justice Gillese, at para. 89 wrote:

“In my view, an applicant …must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded…”

Justice Myers then set out the questions raised by the test and included certain observations. His Honour wrote:

  1. “What is the standard of proof at play?
  2. What does the applicant have to do to answer the minimal evidentiary threshold?

a. Is it enough that the proponent denies the applicant’s evidence?

b. Need there be a “genuine issue requiring a trial?” That phrase, of course, is drawn from Rule 20.04 (2) (a) that governs summary judgment.

c. Need a proponent show that he or she would be entitled to summary judgment in order to avoid proof in solemn form? That too cannot be right. 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 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.

d. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estates cases, more is required.”

Justice Myers then provides some guidance for us to understand the phrase, “minimal evidentiary threshold”. His Honour went on to state:

“The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiary threshold.” I cannot offer much desirable certainty in this case. But discretionary decisions are generally not certain of outcome by definition. In my view, the court ought to 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.

The appellate courts require this court to always be mindful of the goals of the civil justice system so as to implement the law to achieve fair and just outcomes through processes that are efficient, affordable, and especially proportional in light of the facts and circumstances of each case. In my view, the practice under Rule 75.06(3) serves the interests of the parties well when directions are made on a bespoke basis to fit the measurements of the case. Judicial oversight through case conferences and case management techniques are available under Rules 75.06(3) (g) and 50.13 among others. The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties. But processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, use of summary proceedings where possible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.”

What is the takeaway for clients and lawyers involved in will challenges? There is no clear definition of “minimal evidentiary threshold.” Instead Justice Myers suggests a flexible approach to each case having in mind various relevant factors. If done properly, that approach should leave the door open for legitimate will challenges and quash the challenges that are frivolous.

We will have to wait to see the case law as it develops to determine if the pendulum has swung too far toward insulating wills from challenge. In the meantime, those who challenge wills are well advised to gather as much evidence as possible from whatever sources they have to enhance the prospects of being able to proceed with their court challenge. Only then will they be able to get a court order granting access to the traditional sources of evidence that used to be routinely granted in the early stages of a will challenge.


  1.   See Rule 75.03(1).
  2.   The Executor does not receive a copy of the notice of objection until s/he applies for a certificate of appointment of estate trustee. At that point the executor can send a Notice to Objector and if the objector does not serve and file a notice of appearance with 20 days the application for a certificate of appointment proceeds as if there is no objection. It is then up to the executor to move for directions and if s/he does not do so then the objector may do so. This starts what may be a long and involved will challenge. See Rule 75.03.
  3.   See Stefanik v. Stefanik, (2000) O.J. No. 3279 (Ont. S.C.J.), at para. 4.
  4.   Annual Review of Civil Litigation 2017, The Case for Probate: Not Just a Tax — — ARIEH ABRAHAM BLOOM.
  5.   See paragraph 50 of McLaughlin Estate v. McLaughlin 2015 CarswellOnt 9800, 2015 ONSC 4230, (2015) O.J. No. 3433, 10 E.T.R. (4th) 10, 256 A.C.W.S. (3d) 247. I would also refer the reader to paragraphs 91-93 of Neuberger where the OCA reviews the Smith Estate v Rotstein and Travica v. Mailloux that stands in opposition to the proposition set out by Price J., in McLaughlin and supports the proposition that the approach Neuberger is consistent with the jurisprudence on rule 75. The OCA in Neuberger argues that the courts have not approached challenges to the validity of a will on the basis that an Interested Person has an absolute right to proof in solemn form.
  6.   2016 CarswellOnt 3303, 2016 ONCA 191, 129 O.R. (3d) 721, 16 E.T.R. (4th) 1, 263 A.C.W.S. (3d) 549, 345 O.A.C. 378, 395 D.L.R. (4th) 67.
  7.   See Neuberger paragraph 83.
  8.   See Neuberger paragraphs 88-91.
  9.   2017 CarswellOnt 14045, 2017 ONSC 5368, 283 A.C.W.S. (3d) 223.
  10.  See Seepa Paragraph 4.
  11.  See Seepa paragraph 32
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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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