Court File and Parties

COURT FILE NO.: CV-23-698103-00ES DATE: 20230621 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF VIOLET ALBERTA WHITE, deceased

BETWEEN:

THORNE WHITE, Applicant

-and-

ESTATE OF VIOLET ALBERTA WHITE, Respondent

BEFORE: FL Myers J

COUNSEL: Adam Hummel, for the applicant

HEARD: June 20, 2023

Endorsement

[1] The applicant brings this application under Rule 75.06 (1) of the Rules of Civil Procedure, RRO 1990, Reg 194, seeking directions to allow him to obtain access to the files of his late mother’s lawyer Maria Simone.

[2] The application is brought so the applicant can obtain evidence to allow him to consider whether he might mount some type of proceeding that could challenge his mother’s will.

[3] Rule 75.06 (1) provides:

75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.

[4] Rule 75.06 (3) provides that on an application for directions, the court may take procedural steps such as identifying the parties and issues to be resolved. Under sub-rule (3)(g) the court may direct “such other procedures as are just”.

[5] The applicant analogizes to Rule 31.10 that allows discovery of people who are not parties to a lawsuit. He asks for directions allowing him to obtain the lawyer’s file.

[6] The applicant has adduced evidence that his mother, the deceased, Violet Alberta White, made a will in 2014. The named estate trustee under that will is Paul Keaveney.

[7] Mr. Keaveney has applied for a certificate of appointment of estate trustee (i.e. probate) under the 2014 will. Mr. White is not opposing that appointment. Nor is he requesting proof of the 2014 will in solemn form.

[8] Under the 2014 will, Mr. White’s mother left 10% of her estate to be set aside and held in trust for him. The remaining 90% is to go to his brother Raymond. No gifts are apparently left for two other siblings.

[9] Mr. White testifies that in 2021, his mother started to speak about her testamentary wishes and the possibility of appointing a trust company to be trustee of the testamentary trust being left for him.

[10] Ms. White found lawyer Maria Simone on her own. At his mother’s request, Mr. White emailed Ms. Simone on July 10, 2022 to book an appointment for his mother to consult Ms. Simone about her will.

[11] Mr. White says that his mother and Ms. Simone had several conversations over ensuing weeks about updating Ms. White’s will.

[12] From August 9 to 12, 2022, Mr. White emailed Ms. Simone three times to try to book an appointment for his mother to finalize her new will. An appointment was set for August 16, 2022.

[13] On the morning of August 16, 2022, Ms. White suffered a stroke and was taken to the hospital by ambulance. Ms. White asked her son to have Ms. Simone come to the hospital. Ms. Simone responded expressing her sympathy and wrote:

I will need to speak to her directly in regards to her matter. I understand that she does not have a cell phone or a personal phone available in her room. As such, you had indicated that you would be visiting her today. I would therefore kindly ask that when you visit her you have her call me directly at my office number today. As I indicated to you this morning, I cannot discuss Ms. White's matter with you, as it subject to solicitor client privilege. I am simply emailing you for the purpose of facilitating a telephone conference with your mother, given that she is in the hospital.

[14] Ms. Simone attended the hospital on the 17th. Mr. White says that the visit was to go over and sign a new will. When Ms. Simone arrived, Ms. White said that she was not feeling up to discussing her will and asked Ms. Simone to come back another day.

[15] Ms. White died on August 22, 2022 without meeting Ms. Simone or finalizing a new will.

[16] Mr. Hummel submits that the draft will being prepared by Ms. Simone, as set out in her notes, might be an expression of his mother’s testamentary intention to revoke or alter her 2014 will. If that is so, the court might recognize the draft will under s. 21.1 of the Succession Law Reform Act, RSO 1990, c S.26. That section provides:

Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

[17] I am dubious that s. 21.1 could apply on these facts. Ms. Simone’s email on August 16, 2022 said that she wanted to have a telephone conversation with Ms. White. That does not sound like a will was ready for signing. A draft will is just a draft. It is common to see changes made as late as during the execution ceremony. The court frequently sees wills containing handwritten interlineations made just before a will is signed.

[18] Case law from Western Canada discusses the need for a court-ordered will to record “a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death”. Estate of Young, 2015 BCSC 182, at para. 35. It is hard to see how a draft will can meet that threshold. See: Cruz v Public Guardian and Trustee, 2023 ONSC 3629.

[19] But this is not an application under s. 21.1. I am not deciding today if the new unsigned, unreviewed, draft will or Ms. Simone’s notes are an effective will-equivalent. Rather, I am deciding if the applicant is entitled to call for its production of counsel’s file and notes. The merits are for another day. Perhaps Ms. Simone’s file will show that Ms. White expressed a consistent intention throughout their discussions and a draft will had been expressly read to and approved for signing by Ms. White.

[20] I remain reluctant, however. The applicant is not challenging the 2014 will. He has not served the beneficiaries of the estate as established in that will. I am also advised by counsel that the 2014 will contains a clause that disinherits any beneficiary who challenges it. I do not know if that clause is valid and effective for all purposes. I do not have the wording. I do not know if it is an idle threat or if it is supported by a gift-over clause. But Mr. White does not want to risk offending the 2014 will by bringing a challenge based on a new draft will and lawyers’ notes until he sees them.

[21] In effect, Mr. White seeks non-party discovery before he asserts his cause of action. Worse still, he seeks to invade the sphere of his mother’s lawyer client privilege. He wants to do so despite his mother expressing an intention in the 2014 will that she does not want anyone to interfere with her affairs. It is noteworthy too that although Ms. White asked the applicant for help connecting with the lawyer, she apparently did not confide in him the substance of her proposed will changes.

[22] Mr. White also does not want to wait for the 2014 will to be probated to empower the estate trustee to exercise the deceased’s legal privilege to see the lawyer’s file.

[23] In the absence of a will challenge, Mr. White seeks discovery without asserting a cause of action. I fear creating a pond that is ripe for fishing expeditions. Can anyone who is or might be a beneficiary rummage through a deceased person’s most confidential material to see if there is something there that might be a basis to ask a court to recognize a testamentary intention under s. 21.1 of the SLRA?

[24] Here, Mr White knows there is something to be seen. LawPro has told him as much. It does not oppose the order sought. Neither does Mr. Keaveney the estate trustee under the 2014 will. In fact Mr. Keaveney consents to the order sought. Mr. Hummel hypothesizes that perhaps Mr. Keaveney and the beneficiaries under the 2014 will might consent when they learn of Ms. White’s updated wishes.

[25] The applicant also relies on s. 9 of the Estates Act, RSO 1990, c E.21. Subsections 9 (1) and (2) provide:

Production of instruments purporting to be testamentary

9 (1) Whether a suit or other proceeding is or is not pending in the court with respect to a probate or administration, the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.

Examination of persons touching such instruments

(2) If it is not shown that such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he or she has knowledge of such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or before the registrar or such person as the court may direct, or upon interrogatories respecting the same, and to produce and bring in such paper or writing, and such person is subject to the like process in case of default in not attending or in not answering questions or interrogatories or not bringing in such paper or writing, as the person would have been subject to if he or she had been a party to a suit in the court and had made such default, and the costs of such motion or other proceeding are in the discretion of the court.

[26] The purpose of the section is clear enough. It is designed to help beneficiaries find and obtain a deceased person’s will. A will can be ordered produced. If you can’t prove that someone has a will, but you can show reasonable grounds to believe that they have knowledge of a will, then they can be examined under oath to look for the will.

[27] Should that section apply as well to a document that one hopes might qualify as a will-equivalent under s. 21.1? If so, we go from looking for wills – a fairly narrow search – to looking for things that creative people can try to get a court to accept as a will. That search cuts a much wider swath.

[28] I acknowledge that a “testamentary paper” may be broader than a will. Depending on the definition chosen for the adjective “testamentary”, the phrase can be interpreted to be a paper “related to a will”. I do not readily accept that is the usage intended by s. 9 however absent case law showing that such a broad interpretation has been adopted.

[29] In Johnson v Johnson, 2022 ONCA 682, the Court of Appeal recently reasserted the need to consider the balance between discovery and cost:

It also undermines the policy concerns articulated in Neuberger that a claimant ought not be permitted to deplete an estate and delay its administration by seeking documentary discovery or other directions without meeting the minimal evidentiary threshold of “some evidence” that would call into question the validity of a will and that is not successfully answered by the responding party.

[30] Here the applicant is not yet even willing to question the validity of the 2014 will. Yet he burdens the estate with a discovery process. He is not content to wait for the estate trustee to be appointed to manage the issue of privilege. Yet he relies upon the common law “wills exception” to privilege which stems from a will challenge. In the Notice of Application, the applicant asserts:

There is reason to believe that the lawyers and employees of law firms who were involved in the preparation of the Deceased's estate planning, including Drafting Solicitor, have information relevant to material issues.

[31] What material issues? None is pled. Section 21.1 is not pleaded. It was raised by counsel orally as a possible cause of action that might be available after the applicant sees counsel’s file.

[32] My quandary is worsened by the procedural fact that this matter was brought at a 15-minute uncontested case conference. Mr. Hummel was not expecting an inquiry from me into the depths of the balancing of expensive and intrusive investigations against the need for efficiency and affordability in estates matter.

[33] In his Aide Memoire supporting the case conference, the applicant submits:

5. The sought consent order is required for Ms. Simone to disclose her notes. This is all the relief that is being sought for this application, and subsequent to obtaining the notes, the applicant will reassess his legal options, vis-à-vis, his entitlement under the various Wills.

[34] In my view the availability of the pre-lawsuit discovery order sought requires argument based on research. In light of the novelty of s. 21.1, the relief requested may have a far broader reach than just this case. Counsel ought to take steps to bring the matter before the court in a process that allows both or multiple sides to be heard and considered.

[35] In para. 19 of Johnson, the Court of Appeal approved a process whereby a judge can balance in each case the intrusiveness, cost, and delay to be caused to the estate and its beneficiaries by proposed directions against any risks of unfairness caused to the applicant by limiting the scope of directions made.

[36] Does that type of balancing apply to the statutory discretion under s. 9 of the Estates Act (if it applies at all)? Should there be discovery before a will challenge is even brought? If so, what are the relevant factors supporting such a process? Can privilege be waived in this circumstance? Is there prejudice in waiting for an estate trustee to be empowered to act by a granting of probate?

[37] There are many questions to be considered in assessing how to proceed in light of the new s. 21.1 assuming it is pled at some point. Is the minimum threshold test applicable when a s. 21.1 claim is possible? How is that to be expressed in light of Johnson?

[38] It seems to me that the applicant needs to come back to a case conference to propose a process to have this matter heard with researched legal argument.

[39] Perhaps the applicant’s brother Raymond - the 90% beneficiary of the 2014 will - has a view. If there is no interested party, perhaps the profession may take one or more positions in the interests of the development of the law.

FL Myers J Date: June 21, 2023