Summary Resolution Of Probate Disputes In Canada

• Published date: 23 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Scott Kerwin

There has been a "culture shift" in the litigation of probate disputes in Canada. In many jurisdictions, persons interested in an estate must first apply to the court for an order permitting a challenge to the validity of a will. At this stage, some "minimal evidentiary threshold" must be met by the challenger to justify the dispute going any further, due to concerns about the costs and delays associated with probate litigation. A small estate could otherwise be depleted by the actions of a disgruntled, spiteful litigant. If the challenger cannot meet this threshold, or if any issues are "successfully answered" by the executor or other parties, then the Will should be proven in solemn form on a summary basis.

These principles were recently affirmed by the Ontario Court of Appeal in Johnson v. Johnson, 2022 ONCA 682, and indirectly by the Alberta Court of Appeal in Duhn Estate, 2022 ABCA 360. In British Columbia, where changes to the Supreme Court Civil Rules were made in 2014 to adopt the same approach, the caselaw is more limited. The courts have continued to apply the older test about whether a "triable issue" has been raised, and have not considered the larger policy considerations underlying the modern approach to probate litigation. This article will review the caselaw in various Canadian provinces before turning to the current state of the law in BC.

Principles Stated by Saskatchewan Courts

The most substantial body of caselaw can be found in Saskatchewan. The courts in that province follow a two-stage process for proof in solemn form cases. The challenger to a Will must first bring forth some evidence which, if accepted at trial, would tend to negate the validity of the Will. The propounder of the Will may attempt to answer the challenge by showing "unconditional and uncontroverted evidence" that affirms the Will. The Saskatchewan Court of Appeal has explained the underlying policy rationale to this approach as follows: "Proof in solemn form is a lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise a substantial portion of the estate is at risk of being frittered away in pointless litigation".¹ The requirement of showing an evidentiary basis for a probate challenge is to "weed out" challenges that do not raise a genuine issue, and would only deplete the estate and cause unwarranted delays.²

Recent Ontario Law

A similar procedure is now followed in Ontario. The leading case is Neuberger v. York³ in which the Court of Appeal confirmed that persons interested in the estate have no right to require proof in solemn form; they only have the right to request formal proof of a testamentary instrument.⁴ Gillese J.A. stated that a person interested in an estate must meet "some minimal evidentiary threshold" before the court will allow a proof in solemn form proceeding. Otherwise, estates "would necessarily be exposed to needless expense and litigation", and perhaps even depleted entirely. The estate should not be put to such costs and delay simply because "a disgruntled relative or other potential beneficiary makes a request for proof in solemn form".⁵

The meaning of the test articulated in Neuberger was most thoroughly analysed by Justice F.L. Myers in Seepa v. Seepa, 2017 ONSC 5368. He lamented the "cost, delay, and distress" that may arise in lengthy probate disputes caused by a disgruntled relative conducting a fishing expedition through the deceased's legal and medical records on "the most meagre of allegations of impropriety on no real evidence". The approach in Neuberger v. York requires a challenger to meet "some minimal evidentiary threshold". At this stage, the challenger does not need to prove his or her case, or that summary judgment is appropriate. Rather, the question for the court is "whether the applicant ought to be able to put the estate and the beneficiaries to the burden of proof, expense, and delay" of a proof in solemn form proceeding and, if so, what "tools" ought to be given to the challenger such as documentary discovery. Each case is fact-specific. The court will consider the appropriate process for resolving the...