White v. White, 2023 ONSC 3740

A recent case heard before Justice Myers of the Toronto Estates List provides an interesting discussion of orders for the production of a will-drafting solicitor’s file, and shows the limits on such orders being sought under Ontario’s move to ‘substantial compliance’, which occurred in January of 2022.

In this case, the Applicant sought an order for the production of the file of the drafting lawyer of his mother’s will. The Applicant was the residual beneficiary of 10% of his mother’s estate under the will, which was drafted in 2014, which was to be held in trust for him. The remaining 90% went to one of his siblings. In the months leading up to her death, the Applicant’s mother had told the Applicant that she intended to create a new testamentary plan contemplating the appointment of a trust company to act as trustee of the testamentary trust for him.

The Applicant assisted his mother in finding a lawyer, who spoke with her a number of times. Ultimately, the Applicant’s mother died before a new will or trust document was finalized and signed, leaving the original 2014 will as the last valid will of his deceased mother.

In his application, the Applicant relied on both section 21.1 of the Succession Law Reform Act and section 9 of the Estates Act. The former section, the substantial compliance legislation referred to above, grants the Superior Court of Justice the authority to validate a testamentary instrument that was not properly executed, if the Court is satisfied that it set out the intentions of the deceased testator. The latter provides the basis for the production of testamentary documents and for examination of those with possession or knowledge of these documents.

The Applicant sought an order for the production of the lawyer’s records on the grounds that it may contain evidence on which he could base a potential argument under section 21.1 of the SLRA, and, as such, should qualify as a testamentary document under section 9 of the Estates Act. In other words, the Applicant had contemplated the possibility of bringing an application under section 21.1 of the SLRA to validate the unsigned draft will, and sought the production of the drafting lawyer’s file, which he hoped would provide an evidentiary basis for this argument. To obtain the file, he sought to rely on section 9 of the Estate Act.

Justice Myers agreed that the cited section of the Estates Act could refer to something more than just a will. However, his Honour ultimately declined to make the order which was sought by the Applicant, ruling that the discovery process for a document that may serve as a “will-equivalent” was too distant from the scenario contemplated by the Estates Act. Further, Justice Myers noted that the Applicant had not actually commenced a will challenge and had not brought pleadings under section 21.1 of the SLRA, nor pleaded specific material issues related to the drafting lawyer’s file, and stated that he feared creating a precedent that would be used in future “fishing expeditions”, which was not the intention of section 21.1 of the SLRA.

Of note, Justice Myers did not close the door entirely on this argument, and did state that this claim may be analyzed by the Court once again at a later date if more parties were to make submissions and if in-depth legal arguments could be presented.

This decision provides helpful clarity on the limits of the substantial compliance legislation as it pertains to discovery of solicitors’ files. As well, along with Johnson v. Johnson and Seepa v. Seepa this decision represents the ongoing balancing act between a number of conflicting interests and values, such as the need for disclosure and the privacy of the deceased testator, and the broadening access to justice versus the importance of having a strong threshold to protect against unnecessary claims.