My colleague Gillian Fournie wrote a comprehensive post regarding the Court of Appeal for Ontario’s decision in Neuberger v. York, 2016 ONCA 191. Gillian focused on the Court’s decision that the equitable doctrine of estoppel could not be used as a defence to a will challenge. I thought it might be helpful to expand upon the Court’s other finding in obiter dicta: that there is no automatic right for a person with a financial interest in an estate (the Court uses the term “Interested Person”) to compel that a will be proven in solemn form (the Court is referring to all testamentary instruments, not just wills, but I will use the term “will” for ease of reading).
Proving a will in solemn form requires the propounder of a will to prove, in open court and with notice to all Interested Persons, that:
(1) the will was duly executed,
(2) the testator had testamentary capacity and
(3) that the testator had knowledge and approval of the contents of the will.
At such a hearing, the court may also address allegations of undue influence and suspicious circumstances (although note that the burden of showing undue influence is with the challenger; the propounder of the will does not have to disprove the existence of undue influence).
Proving a will in solemn form may be contrasted to obtaining a certificate of appointment of estate trustee with a will (previously known as “probate”) in the ordinary course, which is processed over-the-counter, i.e. as a matter of routine by the estates court office and without the requirement of a court appearance before a judge.
Under rule 75.01 of the Rules of Civil Procedure, an Interested Person may make an application for directions to have a will “proved in such manner as the court directs”. The Rules also use the permissive “may” when stating what steps the judge may take on an application for directions before his or her Honour. Based on the plain wording of the Rules, the Court held that an Interested Person can request – but not require – proof in solemn form of a will. The Court, in turn, can not only decide whether to require that a will is proved but also how it should be proved.
As such, the Court held that an Interested Person who wishes that a will be proven in solemn form must present evidence which would call into question the validity of the will at issue. This application or motion should be dismissed if the Interested Person fails to do so or if the propounder of the will successfully answers the challenge. Conversely, the Court should generally order that the will be proved if the Interested Person adduces or points to evidence that calls into question the validity of the will which is not rebutted.
The court has the discretion in terms of the manner of how the will is to be proved.
The above is obiter dicta (which some refer to as judicial musings), because the appeal before the Court was strictly with respect to whether a will challenge was estopped. However, it is clear that the Court of Appeal is sending a message that a request that a will be proven in solemn form is just that; a request. It will be up to the Court to determine if and how that will should be proven.
