In a previous blog post, I discussed the importance of the minimal evidentiary threshold in will challenges. Notably, when document discovery is sought in a will challenge, the moving party must substantiate the merits of the release of a deceased’s personal information, such as medical records and solicitors’ files. The minimal evidentiary threshold protects the deceased’s privacy and deters disgruntled beneficiaries from commencing fishing expeditions into a deceased person’s affairs simply because they are dissatisfied with their inheritance. In Neuberger Estate v. York, 2016 ONCA 191, the Court specified to meet the minimal evidentiary threshold, the moving party must adduce some evidence that, if accepted, would call into question the validity of a will.
My previous blog post discussed a case where despite the unusual circumstances surrounding the execution of a will, the Court declined to order the release of the deceased’s medical records because the minimal evidentiary threshold had not been met. There can often be a fine line between what is simply unusual and what is sufficiently suspicious to meet the minimal evidentiary threshold. The recent decision in Rogers v. Ferretti, 2026 ONSC 2210 provides more insight and clarity into the matter.
Patricia Ferretti (“Patricia” or the “Estate”) had two children: Joseph Ferretti (“Joseph”) and Diane Rogers (“Diane”). Patricia and Joseph were estranged from 2009 to 2019. Diane predeceased Patricia on September 3, 2017.
Patricia executed three wills during the period of estrangement from Joseph in 2011, 2017 and July 2019. Despite their estrangement, Joseph was a beneficiary in each of these wills. In the July 6, 2019 will (the “July 2019 Will”), Joseph was an equal residual beneficiary along with Diane’s children: Jeffrey Rogers, Gregory Rogers, and Ashleigh Rogers (collectively, the “Grandchildren”). The July 2019 Will appointed Diane’s husband, Glen Rogers (“Glen”), as estate trustee.
On August 26, 2019, Joseph re-entered Patricia’s life. Sixteen days later, on September 11, 2019, Joseph arranged for Patricia to meet with a lawyer unfamiliar to her, but known to Joseph and his wife, to execute a new will which still equally divided the residue of the Estate among Joseph and the Grandchildren, but appointed Joseph as sole estate trustee (the “September 2019 Will”).
On November 5, 2020, Patricia executed another will prepared by a lawyer identified by Joseph (the “2020 Will”). The 2020 Will appointed Joseph as sole estate trustee and residual beneficiary of the Estate. The 2020 Will was drafted under Patricia’s maiden name of “Patricia Mary Abbott” rather than her legal name of “Patricia Mary Ferretti”. However, the 2020 Will affixed Patricia’s signature as “Patricia Mary Ferretti””.
Patricia died on December 15, 2023. After her death and upon learning about the 2020 Will, the Grandchildren commenced an application challenging the validity of the September 2019 Will and 2020 Will, and that propounded that the July 2019 Will (the last will executed before Joseph re-entered Patricia’s life) as Patricia’s last will. The Grandchildren sought the production of Patricia’s financial, medical, and solicitors’ records on the basis that these records were relevant to their will challenge. Joseph claimed that the Grandchildren failed to meet the minimal evidentiary threshold required for the release of these disclosures. The parties attended a hearing before Justice Sanfilippo to determine whether the Grandchildren met the minimal evidentiary threshold.
Justice Sanfilippo accepted the Grandchildren’s submissions and found that they met the minimal evidentiary threshold. Justice Sanfilippo found that Patricia’s medical conditions made her vulnerable and susceptible to undue influence. Patricia suffered from a medical condition that impacted her ability to leave her home, as well as anxiety and extreme hoarding. Furthermore, from December 2019 to February 2020, Patricia became ill and was eventually hospitalized for pneumonia. Upon returning home on February 25, 2020, Patricia received in-home PSW care. Patricia’s ill-health and the increased social isolation due to the pandemic only added to her vulnerability.
After March 2020 and following Patricia’s hospitalization, Joseph gained control over Patricia’s assets. Patricia executed a continuing power of attorney that appointed Joseph as her sole attorney for property, transferred title of her home at 212 Arichat Road in Oakville into joint tenancy with Joseph (the “Property Transfer”), added Joseph as an accountholder on her bank accounts, appointed Joseph as sole beneficiary of her RRIF and transferred approximately $748,446 from a CIBC Wood Gundy Investment Account into a joint account with Joseph.
The rapid pace in which Patricia changed her wills once Joseph re-entered her life and timing of Joseph’s control over Patricia’s assets further contributed to suspicion of undue influence. Notably, the September 2019 Will was drafted by a lawyer who once worked with Joseph’s wife. The 2020 Will being drafted under Patricia’s maiden name instead of her legal name also supported the existence of suspicious circumstances, especially considering that Patricia’s legal name was used in the Property Transfer. Furthermore, the Grandchildren and Glen were kept in the dark about the September 2019 Will, 2020 Will and Joseph’s control of the assets until after Patricia’s death.
Takeaways
Justice Sanfilippo echoed Justice Myers’ sentiments in Seepa v. Seepa, 2017 ONSC 5368: “[a]t 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”.
The circumstances surrounding the executions of the September 2019 and 2020 Will compounded with Patricia’s vulnerability and deteriorating health met the minimal evidentiary threshold and justified the release of third-party productions. To be clear, by finding that the Grandchildren met the minimal evidentiary threshold, Justice Sanfilippo did not find that the September 2019, 2020 Will or Joseph’s control over the assets were invalid. Rather, Justice Sanfilippo found that the release of third-party productions, such as medical records and solicitors’ files, did not constitute a fishing expedition into Patricia’s personal affairs and the Grandchildren were entitled to such productions.
