COURT FILE NO.: CV-21-53

DATE: 20210929

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE ESTATE OF Mabel Johnson, Deceased

RE: Nancy Johnson, Applicant

AND

Janice Johnson, in her personal capacity as Estate Trustee of the Estate of Mabel Johnson, Deceased, Hugh Johnson, Kelsey Johnson, Bradley Johnson, Holy Trinity United Church, Foster Parents Plan and Foundation for Children, Respondents

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Kimberly A. Whaley and Bryan Gilmartin, counsel for the Applicant

Jean-Pierre Quintal, counsel for the Respondent, Janice Johnson

HEARD: July 14, 2021 by Zoom at Pembroke

ENDORSEMENT

[1] The applicant, Nancy Johnson, seeks disclosure relating to the estate of her late mother, Mabel Johnson, including medical records, financial records, and the notes and files of the lawyer who prepared Mrs. Johnson’s last will.

[2] Mrs. Johnson died on August 23, 2020. She was 99.

[3] The Superior Court of Justice in Pembroke issued a certificate of appointment of estate trustee with a will to the respondent, Janice Johnson (“the executor”), on March 4, 2021. The applicant had served a notice of objection in January 2021, but the court had no record of it. The relief sought by the applicant includes an interim preservation order to prohibit the executor from dealing with Mrs. Johnson’s estate.

[4] The executor’s lawyer says the estate is worth about $457,000.

The applicant’s position

[5] The applicant alleges that the circumstances surrounding the execution of Mrs. Johnson’s last will on August 12, 2015 are highly suspicious.

[6] The applicant did not receive a share of Mrs. Johnson’s estate in the 2015 will, although the executor and their brother, Hugh Johnson, did. The applicant says that Mrs. Johnson had treated her three children equally in her previous will, signed in 2007. The applicant describes Mrs. Johnson’s decision to disinherit her as “inexplicable.”

[7] The applicant also believes there is evidence that Mrs. Johnson lacked capacity to execute the will.

[8] The applicant says that as one of Mrs. Johnson’s children, she has an interest in Mrs. Johnson’s estate and that, as such, Rules 75.01 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, entitle her to seek production of relevant disclosure.

The position of Mrs. Johnson’s estate executor

[9] The executor of Mrs. Johnson’s estate, her daughter Janice Johnson, says there is no basis for the applicant’s disclosure request and that the applicant is very aware of why Mrs. Johnson disinherited her.

[10] The executor says the applicant has been provided with a copy of Mrs. Johnson’s will, copies of the powers of attorney executed by Mrs. Johnson from 2015 until her death, and certain disclosure in response to the applicant’s allegations of suspicious circumstances.

[11] The executor characterizes the applicant’s request for further disclosure as a fishing expedition.

Analysis and conclusion

[12] Both parties drew my attention to the decisions of Gillese J.A. in Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, and of Myers J. in Seepa v. Seepa, 2017 ONSC 5368.

[13] In Neuberger, at para. 88, Gillese J.A. concluded that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, she said, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.

[14] In Seepa, Myers J. zeroed in on the “minimal evidentiary threshold” requirement from Neuberger. At para. 35, Myers J. noted that, at this preliminary