Court File and Parties

COURT FILE NO.: CV-23-698103-00ES DATE: 2023-12-29

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF VIOLET ALBERTA WHITE, deceased

BETWEEN:

THORNE WHITE, Applicant

-and-

PAUL KEAVENEY in his capacity as estate trustee to the ESTATE OF VIOLET ALBERTA WHITE, SUSAN EVELYN BECK, MATHEW BECK, AIMEE BECK, RAYMOND CHARLES WHITE, PERRY MARTIN WHITE, BRADEN WHITE, PAUL KEAVENEY, SUSAN KEAVENEY, KRISTINA KEAVENEY, PATRICK KEAVENEY, LAURA GARDENER, FIRST UNITARIAN CONGREGATION OF TORONTO, DON HEIGHTS UNITARIAN CONGREGATION OF TORONTO, Respondents

BEFORE: FL Myers J

COUNSEL: Adam Hummel and Tyler Lin, for the applicant Matthew Rendely, for the respondent Paul Keaveney in his capacity as estate trustee to the ESTATE OF VIOLET ALBERTA WHITE, William P.H. Procter, for the respondent Raymond White Dawn Phillips-Brown, for Maria Simone (not a party)

HEARD: December 18, 2023

ENDORSEMENT

THIS APPLICATION

[1] Under s. 9 of the Estates Act, RSO 1990, c E.21, the court can order a person to produce “any paper or writing being or purporting to be testamentary”. The court can also compel a person to be examined under oath if there are reasonable grounds to believe that the proposed witness has knowledge about the existence of a deceased person’s testamentary paper or writing.

[2] Typically, s. 9 has been used to help locate a deceased person’s will.

[3] Although the section is drafted in wider terms and speaks of “any paper or writing”, until recently, documents that were not executed formally as a will or as a holograph will had no legal effect as testamentary dispositions in Ontario.[^1] Therefore there was no point in the possible additional breadth of inquiries under the s. 9 except as a means to locate a will.

[4] The application in this case raises a new question: Has the scope of s. 9 and peoples’ entitlement to look for a deceased person’s testamentary documents changed with the enactment of s. 21.1 of the SLRA?

[5] Section 21.1 of the SLRA allows the court to recognize as valid wills documents that are not properly executed as wills. It is a new section whose scope is not yet well defined.

[6] The issue in this case is whether a possible beneficiary is entitled to compel disclosure of documents in the possession of a lawyer for a deceased person to look for evidence to see if any paper or writing held by the lawyer might be sufficiently close to a will to be recognized as a will under the new authority under s. 21.1 of the SLRA.

[7] This is a new question that has not been considered before as far as counsel and I are aware.

PROCEDURAL HISTORY AND THE INITIAL FACTS

[8] This application first came before me on June 21, 2023 on an unopposed basis.

[9] At that time, the evidence adduced was that:

a. The applicant’s late mother made a will in 2014. She died on August 22, 2022.

b. Paul Keaveney is named as the estate trustee in the 2014 will. He had applied for probate.

c. In her 2014 will, the deceased left 10% of her assets to be held in trust for the applicant. She gave the remaining 90% to the applicant’s brother Raymond White.

d. In 2021 the deceased began discussing making changes to her will. In July, 2022 she found a lawyer named Maria Simone. She spoke to Ms. Simone several times.

e. An appointment was set for August 16, 2022 for Ms. Simone and the deceased to meet to finalize a new will.

f. Before the meeting, the deceased suffered a stroke and was taken to the hospital. At his mother’s request, the applicant sent an email to Ms. Simone asking her to come to the hospital.

g. Ms. Simone 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.

h. Ms. Simone attended the hospital the next day. The applicant says that the purpose of the meeting was for his mother to go over and sign a new will. The deceased said she was not feeling up to the discussion and asked Ms. Simone to come back another day.

i. The deceased died five days later without signing a new will.

[10] When the matter first came before me I expressed numerous concerns.

[11] First, I wondered whether there was a draft will that was ready to sign because Ms. Simone wrote that she still needed to have a further telephone conversation with the deceased. I questioned whether lawyers’ notes leading to an unsigned draft will would suffice for s. 21.1 given that even formally signed wills often contain last-minute handwritten changes.

[12] I recognized however that the issue before me was not whether s. 21.1 actually applied to any documents but whether the applicant ought to be entitled to call for production of counsel’s file to see if s. 21.1 might apply to anything contained in the file.

[13] I noted as well that the applicant says he is not challenging the 2014 will. He wants to see if he can do better without undermining what he already has.

[14] The 2014 will contains a clause that disinherits anyone who challenges its terms. Whether one can propose a new will without implicitly challenging the old will is for another day. But, without a will challenge, the applicant has a tougher time dealing with the lawyer client privilege that seemingly applies to his mother’s communications with her lawyer.

[15] A will challenge is a recognized exception to a deceased person’s lawyer client privilege.[^2] I required satisfaction that the request for production of testamentary papers to decide if a will challenge might be brought is also an exception to privilege.

[16] I was also concerned that the applicant had not named any other beneficiary to the 2014 will as a party to this lawsuit. Raymond White, as the 90% beneficiary under the 2014 will would likely be affected if a new will is found. Moreover, the estate trustee under the 2014 will would have authority to deal with the mother’s lawyer client privilege.

[17] I did find it noteworthy that the mother had taken steps to preclude a will challenge; that she had also found her own lawyer; and that she had not confided in the applicant what she intended to do to change her will (if anything). It seemed to me that an argument could be made that the mother did not want this type of potential intrusion into her privileged matters.

[18] I also expressed a concern about the potential increase in the scope or breadth of s. 9 of the Estates Act sought by the applicant. It is one thing to look for a will. Looking for any piece of paper that one might later claim to be close enough to qualify as a will under s. 21.1 was a very different matter. Moreover, doing so before a will challenge is brought is pre-litigation discovery which is not generally available.[^3]

[19] In my endorsement dated June 21, 2023, I expressed the concern in this way:

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?[^4]

[20] Ultimately, I deferred consideration of this application to allow the applicant to respond with evidence and further legal submissions. I wrote:

[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 v Johnson, 2022 ONCA 682, 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.

THIS HEARING – FURTHER CLAIMS AND FACTS

[21] In November, the applicant delivered an amended notice of application. With leave obtained by order of Dietrich J., the applicant has now named as parties and brought before the court all the beneficiaries under the existing 2014 will.

[22] The amended notice of application also adds a specific claim to validate under s. 21.1 of the SLRA the draft will prepared by Ms. Simone.

[23] The applicant also adds as grounds for relief a reference to Rule 39.03. That rule allows a party to examine under summons any witness to provide evidence for the application.

[24] In my view, Rule 39.03 is a red herring. A summons to witness is a means to compel a person to attend to give evidence at a fixed time and place. It gives no independent rights. A summons remains subject to privilege, relevancy, and all the concerns about a possible abuse of process that are already raised.

[25] Like most estates’ cases, this application is made under Ruler 75. Rule 75.06 (3) contains sufficient breadth to order production and examination without recourse to rules about summonses to witnesses and the oft-seen, non-party discovery rule 31.10.[^5]

[26] If I am not prepared to grant the order for production of documents by the lawyer under Rule 75.06 (3) and s. 9 of the Estates Act, the service on Ms. Simone of a summons to witness will not assist. Similarly, if I am prepared to make the order for Ms. Simone to produce her file under Rule 75.06 (3), the lack of a summons would not be an impediment.

[27] The applicant has delivered a new affidavit sworn November 1, 2023. He provides additional relevant facts as follows:

a. The applicant provides particulars of the full family tree.

b. The applicant lists the numerous specific legatees in the 2014 will.

c. The applicant says that his mother was mentally sharp throughout. She understood, for example, to put the applicant’s share of residue into a trust so as to protect his entitlement to receive financial aid.

d. The applicant says his mother told him that her financial advisors from RBC questioned her 90:10 residuary gifts in late 2021. This led her to re-think her will.

e. Several times, but at least on August 1, 2022, the applicant’s mother told him that her new will would have the following changes (which I quote from para. 25 of his new affidavit):

i. The estate trustee would be updated from Raymond or Paul or Susan Keaveney to my mother's accountant, Larry Tierney;

ii. Susan's $30,000.00 share of Violet's estate would be decreased to $15,000.00 over five years;

iii. Mathew Beck and Aimee Beck's respective shares would be enlarged from $10,000.00 each to $50,000.00 each;

iv. My share of the residue would still be held in a trust, but would be increased from ten percent (10%) at approximately $120,000.00 to thirty or forty percent (30% to 40%) at $300,000.00 or $400,000.00.

f. His mother gave him detailed reasons for each of the proposed changes. (I do not recite the detail here). and

g. On August 17, 2022, in preparation for meeting Ms. Simone at the hospital, the applicant’s mother asked him to help ensure that the same figures that they had discussed were included by Ms. Simone in the draft will.

[28] The applicant also swears:

47. I know that there is a draft will because Ms. Simone brought the draft will with her and told me as much. Ms. Simone told me that my mother appeared to be too ill or too tired for Ms. Simone to read the entire draft will to her, which was a necessity if she wanted to finally execute the draft will.

[29] During the hearing, Ms. Phillips-Brown advised that LawPro and Ms. Simone had not given any information to the applicant as to what might be contained in Ms. Simone’s file. But there is nothing in evidence to contest the evidence given expressly by the applicant.

SECTION 21.1 OF THE SLRA

[30] Section 21.1 of the SLRA allows the court to validate a document that is not a properly signed will. The court can order that the improperly made document is nevertheless valid and effective as the will of a deceased person. The section says:

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.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5.

Transition

(3) Subsection (1) applies if the deceased died on or after [January 1, 2022] the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.

[31] This section allows the court to recognize as a valid will a document that, “sets out the testamentary intentions of a deceased.”

[32] The only limitations on the face of the statute are that the deceased must have died after January 1, 2022 and that the document sought to be recognized as a will cannot be in electronic form.[^6]

[33] No one knows with certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply.

[34] In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, I recognized as a valid will under s. 21.1 of the SLRA, a document that the deceased person prepared as a will but failed to have witnessed. The deceased person knew that witnesses were required, but he thought they could sign on later. The document had been carefully kept as the deceased’s will.

[35] In Vojska v Ostrowski, 2023 ONSC 3894, I recognized as a valid will under s. 21.1 of the SLRA, a document that had been prepared as a formal will by a lawyer. It was signed by the deceased person in a formal signing ceremony with the lawyer and another witness. By mistake, the lawyer did not sign the will however.

[36] In Groskopf v. Rogers et al., 2023 ONSC 5312, Hilliard J. recognized as a valid will under s. 21.1 of the SLRA, a “fill-in-the-blanks” form of will document that the deceased person signed but did not date or have witnessed. She kept it in a lock box with other notes about the distribution of her estate.

[37] Recently, in Kertesz v. Kertesz et al., 2023 ONSC 7055 I recognized as a valid will under s. 21.1 of the SLRA, a note prepare by a deceased person who knew his death was imminent. The note was unsigned. But it demonstrated on its face that the deceased person intended it to be a will; that he understood the scope of his assets; he understood the pool of possible beneficiaries; and that he understood how each of the foregoing interrelated.

[38] In each of these cases the court also found that the document being recognized was a “fixed and final” expression of the deceased person’s testamentary intentions as at the time of its creation. In each, there was an imperfectly prepared will. To date, I am unaware of any Ontario decision that goes beyond fixing or ignoring execution errors on documents that, if properly signed, would have been wills.

POSITIONS OF THE ADDED PARTIES

[39] Both the estate trustee under the 2014 will and the beneficiary of 90% of the residue of the estate were represented before me.

[40] Raymond White is the brother of the applicant and he is the 90% beneficiary under the old will. He was also the first-named estate trustee in that will. However, he renounced that role in light of his position as a beneficiary.

[41] If there is a new document to be recognized as the mother’s will, any new or greater gifts will likely come at the expense of Raymond White’s 90% residuary interest.

[42] Counsel for Raymond White confirms that Raymond consents to the release of Ms. Simone’s file as sought. This is without prejudice to any rights he may have on the merits. But he chooses not to make a stand at this stage.

[43] Paul Keaveney is the alternate estate trustee named in the 2014 will. He has applied for a Certificate of Appointment as Estate Trustee with a Will. That application has now been held in abeyance pending the outcome of this application.

[44] As estate trustee, Paul Keaveney is the person entrusted with the administration of the deceased’s estate.

[45] As estate trustee, Mr. Keaveney is the deceased’s representative with authority to see her privileged information and to waive her privilege.

[46] Mr. Keaveney takes no position on this application. He does not oppose therefore the applicant’s request to see documents that may be subject to the deceased’s lawyer client privilege.

ANALYSIS

[47] The applicant’s amendments, new evidence, and the positions of the added parties address my concerns about this application.

[48] Counsel for the applicant agrees that there is a legitimate concern to ensure that these applications do not become a way for disgruntled relatives who are excluded from a will to inflict costs and delay on the estate and its beneficiaries discussed in Johnson.

[49] However, the fact that the applicant has evidence of the existence of a written will document addresses that concern. I make no finding of what might happen if the will is only resident on counsel’s computer system despite something having been printed out previously for Ms. Simone to take to the hospital. But, I am no longer concerned that someone may be just fishing to find any old piece of evidence that they could try to twist into an argument under s. 21.1.

[50] The applicant is not a disgruntled, excluded relative. He has a 10% share in the residue and he has reason to believe that the deceased intended to increase that share. Raymond White, who stands to lose financially if that occurs, consents to the disclosure of the lawyers’ file. Whether he consents to a later order that something found in the file be validated as a will, is another issue.

[51] The applicant’s evidence meets any minimum evidentiary threshold that may apply by analogy to Johnson. He specifically addressed my concern that his mother had not shared the contents of her new will with him. She did do so. Moreover the fact that the mother asked the applicant to help her ensure that her new numbers were correctly listed by Ms. Simone adds strength to the inference that Ms. Simone was indeed bringing a draft document with her to the hospital for execution as a will that day.

[52] The applicant has sued for recognition of a specific document as a will under s. 21.1 of the SLRA. This meets my concern about pre-litigation discovery.

[53] The positions of Raymond White and the estate trustee satisfy me that the application is not an abuse or overbroad or just a fishing expedition.

[54] On the facts of this case, I do not need to deal with the breadth of the will challenge exception to lawyer client privilege discussed in Geffen. Here, the applicant says there is a document that enshrines the deceased person’s testamentary intentions. If that is so, then, like a will, it cannot be privileged. For the deceased person to have carried out her intentions, she would necessarily have had to disclose them.

[55] But this limited exception to privilege would only allow for disclosure of the single draft document that is said to be the draft will to be recognized under s. 21.1. It does not necessarily allow for production of the lawyer’s notes. Moreover, as alluded to above, the inapplicability of the Electronic Commerce Act, would not support the release of counsel’s electronic files (if any).

[56] The issue is resolve in this case by the consent of Raymond White and the estate trustee’s decision not to oppose the relief sought. Whether the e-files or notes of counsel could be found to be a will under s. 21.1 is for another case or at least another day. Here, the other documents are sought to try to establish that the draft will of which the applicant testifies did indeed enshrine the deceased person’s fixed and final testamentary intentions. The lawyer’s notes, in particular, could disclose if she and the deceased had finalized all gifts and were ready to sign the draft will document that counsel brought to the hospital. While these notes would likely be privileged, in this case, for these purposes, the use proposed is to promote the deceased’s testamentary intention. That is, they are ancillary to and to be used to support a document that plainly could trigger s. 21.1 and could be found to be a valid will if the requisite final testamentary intention existed. See also: Hope v. Martin, 2011 ONSC 5447 at paras. 19 to 22.

[57] In any event, I am prepared to order the disclosure in light of the positions of the interested parties.

[58] I wish to be clear that this decision is very fact specific. In considering the relationship between s. 9 of the Estates Act and s. 21.1 of the SLRA, I am concerned about the risk of unleashing unintended or unanticipated consequences that may be harmful.

[59] Discerning the breadth of the overlap between the two statutory provisions is an iterative or incremental process. In statutory interpretation, the goal is to discern the intention of Parliament or the Legislature. Here, I do not have a problem reading s. 9 as applying to a particular written will document that, as described in uncontested evidence, may meet s. 21.1. Whether the same will be said for other documents or circumstances is for another day.

[60] My decision is as narrow as it can be on the facts. There is evidence of an actual document that existed in written form as a draft will prior to the deceased passing away. The applicant has brought an application to recognize that document as a will under s. 21.1 of the SLRA. He has named all interested parties.

[61] It is very significant to me and a necessary piece of the relief that I am convinced to grant today, that Raymond White consents and the estate trustee does not oppose the relief. Were it otherwise, I might have had to consider any privilege claims asserted against the documents other than the actual draft will. There could also be an issue of whether the “no contest” clause in the 2014 will might affect the outcome. Contestation could also affect my finding that the applicant is not in a position analogous to a disgruntled relative in a will challenge.

[62] I am not to be taken in this decision to be widening at all the scope of applicability of s.21.1. While I am aware of cases from Western Canada in which lawyers’ notes have been held to satisfy statutes like s. 21.1 of the SLRA, I remain to be convinced. If broader uses of s. 21.1 are sought later, it will be for those parties and courts to consider whether the Legislature intended such an approach. Section 21.1 speaks of recognizing documents that were not properly executed or made under the SLRA. Whether this applies beyond wrongly executed wills or unexecuted wills remains to be seen.

[63] Similarly, I would still hesitate to consider an application to access a deceased person’s lawyers’ files based just on a party’s hope to come across a previously unknown document that might possibly be made the subject of a claim under s. 21. Nothing that I have said above is intended to allow s. 9 of the Estates Act to be used with s. 21.1 of the SLRA to encourage fishing expeditions or to foster litigation that may be brought by a disgruntled relative to leverage a settlement by the threat of the costs and delay of the litigation itself.

ORDER

[64] I will sign the draft order sought requiring Maria Simone to deliver, within 25 days, copies of all solicitor's records, correspondence, notes and files relating to the 2022 testamentary wishes and/or estate planning of the deceased, including, but not limited to, any previous or subsequent wills, and any original papers or writings being or purporting to be testamentary that are in her power to access, possession or control.

[65] Ms. Simone is also content to give evidence orally if requested. I will order that in the form sought.

[66] I will sign the usual confirmation that privilege is waived as sought.

[67] The applicant asks for costs in any event payable by the estate as this a novel case and it is in the interest of all beneficiaries.

[68] Raymond White does not agree that he should bear 90% of the applicant’s costs if this all should come to naught. I agree. The applicant says, without evidence, that he is impecunious so this is an issue of access to justice. I disagree. The risk of costs is part of the cost benefit analysis that one undertakes n every civil lawsuit.

[69] At is basest, the applicant is suing to try to obtain more money at the expense of his brother Raymond. He knew that what he was proposing is novel and had issues and risks. His success today is in no small measure due to Raymond’s decision not to make this procedural issue the main battleground. I do not know if a battle will ever emerge. There may be no draft will. Or Raymond may consent to recognize a draft will if one exists in final form. But it does not seem fair or reasonable to me for Raymond to have to pay, in effect, for the applicant simply being allowed to look and see if he has a claim.

[70] Costs are in the cause as among the applicant, Raymond White and the estate trustee.

[71] A 15-minute case conference is scheduled for January 11, 2024 for counsel to discuss with a judge the scheduling of next steps including, perhaps, the appointment of an ETDL.

FL Myers J

[^1]: See s. 4 (2) and ss. 6 and 7 of the Succession Law Reform Act, RSO 1990, c S.26 [^2]: Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353, at p. 386 post b. [^3]: No one argued that the relief discussed in Norwich Pharmacal Co. v. Comrs. of Customs and Excise, [1974] A.C. 133, [1973] 2 All E.R. 943 (H.L.) as applied in Ontario in cases such as GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 ought to apply here. I leave that question for another day therefore. [^4]: White v White, 2023 ONSC 3740 [^5]: Mr. Rendely points out that a motion for production of documents under s. 9 of the Estates Act is properly made under Rule 74.15 (1). Under Rule 74.15 (1)(i) the court may make directions. Examinations may be held under Rule 74.15 (4) with leave of the court. But a motion presupposes that there is an existing application for some other substantive relief. That is not the case here. I am not asked to rule on whether the two processes differ on the issue in this case. [^6]: Counsel did not discuss the effect of s. 21.1 (2) or s. 31 of the Electronic Commerce Act, 2000, SO 2000, c 17. The latter section provides that the ECA does not apply to wills. Section 5 of the ECA says that: A legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference. Without the recognition provided by s. 5 of the ECA, it seems that notes or a draft will stored on counsel’s computer system or a later printout of such an electronic file may not be a “document or writing” for the purpose of s. 21.1. While that issue is not directly before me today, I do need to consider whether I should be granting access to the lawyer’s computer files if the contents of those files are not capable of being recognized as wills under s. 21.1.