In will challenges, it is common for parties to seek disclosure of the testator’s medical records, particularly when there are allegations of undue influence or lack of testamentary capacity. While courts are often inclined to grant requests for medical records, the requests must be justifiable in relation to the litigation. This topic was addressed in the recent decision, Farooque v Korba, 2026 ONSC 3124 (CanLII), discussed below.
Background
The Deceased died in September 2021 and was survived by her two adult children, Lara and Ian. The Deceased’s last will and testament was dated April 2021 (the “Will”) and disinherited Lara. Lara brought an application seeking a declaration that the Will was invalid and had been obtained through undue influence by Ian.
In 2022, the siblings obtained an interim court order allowing them to seek the Deceased’s medical records for a two-year period, namely, from September 2019 to September 2021. Those medical records were produced and contained nothing relevant to the issue of undue influence. Subsequently, in 2024, Lara brought a motion seeking more of the Deceased’s medical records, including counselling/therapy records, dating back as far as possible.
As the motion judge explained, the release of a deceased’s medical records is an invasion of the deceased’s privacy, and particularly objectionable when it amounts to a fishing expedition. In this case, Lara had reviewed two years of the Deceased’s medical records and found nothing relevant to the issue of undue influence that would justify the release of further medical records. Accordingly, her motion for additional medical records was denied, but with one exception.
Lara’s evidence was that the Deceased had seen a counsellor from 2005 to 2009, and that during those counselling sessions, Ian’s behaviour had been discussed. The motion judge found that these counselling records, though they dated back almost 20 years, may have informed the nature of the relationship between Ian and the Deceased from the Deceased’s perspective. Accordingly, the motion judge granted Lara’s request for the counselling records for the period 2005 to 2009.
Ian appealed the decision. The appeal was heard in 2026. The appeal judges set aside the order for production of the counselling records. While those records may have informed the relationship between the Deceased and Ian, such a low threshold for production of medical records would permit the “fishing expedition” that is expressly precluded in the case law.
The appeal judges also noted that there was an absence of any evidence of undue influence during the relevant time period. The relevant time period was the two years proximate to the challenged Will (i.e., from September 2019 to September 2021). The absence of evidence closer to the relevant time period does not provide a foundation for further disclosure of sensitive personal information.
The appeal judges also noted that the therapeutic records ought not to have been requested in the first place. The two-year period for disclosure of the Deceased’s medical records was more than enough based on the court record. And those records were silent in relation to undue influence. There was therefore no basis to request more records.
Takeaway
Farooque v Korba is a useful reminder that requests for a testator’s medical records are not limitless. The request should have a rational connection to the relevant time period, which is typically the years surrounding the execution of the impugned Will.
