Ontario Superior Court of Justice

Court File No.: CV-25-00737823-00ES
Date: 2025-05-08

Between:
Judith Kimberly Allison, Applicant
-and-
Stephanie Lynn Sparks and Nicole Anne Sparks, Respondents

Before: Frederick L. Myers

Counsel:
Genevieve Madill, for the applicant
Jasmine Sweatman, for the respondents
Matthew Furrow, for Michael McBride (Non-Party)

Heard: 2025-04-30

Endorsement

The Motion

[1] The applicant seeks an order appointing an ETDL, interim support, directions, and consequential relief on consent of the respondents. She also seeks an order for production of the estate planning file of the deceased’s lawyer Michael McBride. The respondents take no position on this request.

[2] Mr. McBride’s counsel asserts the deceased person’s privilege on his former client’s behalf. He does so as a non-party without an adversarial interest. Rather, Mr. Furrow made submissions on the issue much as amicus curiae might be expected to do. I appreciated his helpful approach.

[3] This is not a will challenge. Rather, the applicant asks to see a deceased person’s lawyer’s files in hopes of finding evidence of a document (or a series of documents) expressing the deceased person’s fixed and final testamentary intention to a sufficient degree to be recognized as a will under s. 21.1 of the Succession Law Reform Act, RSO 1990, c S.26.

The “Wills Exception” to Lawyer Client Privilege

[4] I accept that the goal of ascertaining the deceased person’s true intentions in his or her will or formal testamentary documents furthers the interests of the deceased person. Where a person’s testamentary documents are challenged or require interpretation, the person can be assumed to have wanted his or her true intentions to be carried out.

[5] Therefore, where efforts are made to review the deceased person’s lawyers’ files to ascertain the client’s true intentions as expressed in his or her will or testamentary documents, the quest is excepted from lawyer client privilege.

[6] In Geffen v. Goodman Estate, [1991] 2 SCR 353 at page 387, Justice Wilson wrote about an interpretation of a trust settled by a deceased person:

In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. in Re Ott, supra, "[i]n the interests of justice" to admit such evidence. [1]

[7] In Geffen, Wilson J. held, in essence, that where a deceased person has expressed an intention unclearly (or perhaps without capacity or while under the undue influence of another) it can be assumed that the deceased person would want everyone to know what his or her true intentions were. In such cases, privilege is waived because the deceased has himself or herself released from the confidential lawyer client relationship a document to try to express his or her intention.

Section 21.1 of the Succession Law Reform Act

[8] Try as I might, I cannot fit the rationale of the “wills exception” to a case where a possible beneficiary wants to invade the confidential sphere of a deceased’s relationship with his or her lawyer to try to ascertain whether the deceased might have left enough documentary or written breadcrumbs to line a path to recognition of a document “as valid and effective as the will of the deceased” under s. 21.1 of the SLRA.

[9] Section 21.1 of the SLRA 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.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

[10] Section 21.1 is a recently enacted provision that allows a court to declare a document or writing to be effective as a will although it is not properly executed or made. While the limits of the reach of s. 21.1 have yet to be set definitively, case law has generally found that to qualify for recognition under s. 21.1, a document must set out the testamentary intention of the deceased in a “fixed” and a “final” way like a will.

[11] Mr. Furrow set out in his factum brief summaries of several Ontario cases involving s. 21.1:

41. As to how far the wills exception should be extended, it is instructive to review the reported caselaw to date in which a document has been validated under section 21.1 of the SLRA:

(a) Cruz v. Public Guardian and Trustee, 2023 ONSC 3629: the deceased prepared his own Will and signed it, but failed to have it witnessed contemporaneously. No lawyer was involved.

(b) Vojska v. Ostrowski, 2023 ONSC 3894: the deceased signed her Will at the office of the drafting lawyer, but one of two witness signatures was inadvertently omitted.

(c) Groskopf v. Rogers et al., 2023 ONSC 5312: the deceased, by hand, completed and signed a stationer's printed form Will, but did not have it witnessed. No lawyer was involved.

(d) Kertesz v. Kertesz, 2023 ONSC 7055: the deceased hand-wrote a lengthy document, but did not sign it. No lawyer was involved.

(e) Salmon v. Rombough, 2024 ONSC 1186: the deceased signed, but did not have witnessed, a document made up of his both own handwriting and photocopied-and-pasted sections of a prior printed Will. No lawyer was involved.

(f) Marsden v. Hunt et al., 2024 ONSC 1711: the deceased signed a Will drafted by a lawyer, but one of two witness signatures was inadvertently omitted.

(g) Re: O'Neill Estate, 2024 ONSC 2228: the deceased prepared her own Will and signed it in the presence of others, but none of them subscribed as witnesses. No lawyer was involved.

(h) Allan et al. v. Thunder Bay Regional et al., 2024 ONSC 3260: the deceased hand-wrote a codicil but failed to sign it. No lawyer was involved.

(i) Hejno v. Hejno, lower court decision unreported, Court of Appeal motion for extension of time to appeal at 2025 ONCA 249: the court validated draft Wills that had been drafted by a lawyer, although certain pages appear to have been slip-sheeted; the nature of the deficiency in formality of execution is not specified. No written reasons were provided by the lower court.

(j) Grattan v. Grattan, unreported: the deceased was sent a draft Will digitally by her lawyer. She sent the draft back in the same digital format with alterations, such as spelling corrections. The lawyer promised to make the necessary corrections. The deceased failed to schedule a signing appointment before her death 15 days later. (Notably, the court did not refer to section 21.1(2) of the SLRA in its decision; that section would appear to have prohibited the validation of a digital-only document.) [2]

[12] In Ontario, virtually all the cases have involved recognition of a final document that failed to meet the execution formalities of a will. I have previously questioned whether a draft will in a lawyer’s hands can be sufficiently final to meet the requirements of s. 21.1 of the SLRA. [3]

[13] To me, “final” means a finished product that expresses the outcome of a decision-making process. A draft will is always subject to amendment up to the moment of signing by a testator.

[14] I do not know if s. 21.1 is intended to have judges decide when someone who sat with a lawyer but did not sign a will should be taken to have intended that an unsigned draft is to be given effect.

[15] It is one thing to recognize a will that is not quite signed in the technically correct manner. In looking to see if witnesses signed the will properly or if the deceased properly met the formalities of a holographic will, there is usually no question about the finality of the deceased person’s testamentary intention.

[16] Trying to decide if some notes or even a draft will is final is much more substantive in nature.

[17] In White, I allowed access to a lawyer’s file solely to look for a draft document in circumstances where there was evidence of a final document being prepared by a lawyer and brought to the hospital for the deceased to sign. I allowed an exception to privilege to determine if that specific document might meet the tests of “fixed” and “final” at a later hearing under s.21.1. However, I did so on the narrowest possible basis:

[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 [the principal beneficiary of the estate] 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.21.1]. 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.

[18] As discussed in White, there is a second concern beyond the invasion of the deceased’s privilege. The Court of Appeal has found that will challenges present a particular opportunity for disgruntled relatives or others to unleash substantial costs, delay, and distress on an estate and its beneficiaries simply by bringing a lawsuit and demanding production of relevant documents under s. 9 of the Estates Act and Rules 30 and 75 of the Rules of Civil Procedure. To counter the possible bad faith use of a will challenge and its attendant procedural rights, the Court of Appeal imposed a requirement that a challenger make a preliminary showing of a minimum evidentiary threshold to justify the putting the estate and the beneficiaries through the costs of the legal process. Neuberger v. York, 2016 ONCA 191 at para. 88 and Johnson v. Johnson, 2022 ONCA 682 at para. 16.

[19] In this type of case, both privilege and risk of abuse are concerns. I am referring to cases where someone who wants to see deceased person’s lawyer’s file and it may be someone who is on the broadest of fishing expeditions to hunt for documents that might possibly form a basis for an argument under s. 21.1 of the SLRA.

The Facts

[20] The deceased has an old will. The applicant is his spouse in a relationship that post-dates the old will. There is no question that in the fall of 2023, he saw a lawyer about making a new will.

[21] The deceased supported the applicant. She also made loans to him. They travelled extensively. He made the applicant the designated beneficiary of his TFSA and his RRIF.

[22] The applicant has pleaded that a document exists to satisfy s. 21.1 (to try to plead into White) but there is no evidence supporting this pleading. It is known that in the summer of 2023, the deceased wrote to the applicant saying that he would have a new will within three weeks. He also told his sister that he intended to leave his house to the applicant. [4]

[23] The deceased filled in a pre-will checklist that included a statement that his old will was null and void. He consulted several lawyers in the fall of 2023. He met with Mr. McBride on multiple occasions.

[24] The deceased signed and produced new powers of attorney in November, 2023. The powers of attorney named the applicant as the deceased’s attorney for property and for personal care.

[25] The deceased went to his lawyer’s office again in December.

[26] The deceased entered the hospital on December 31, 2023. He died a few weeks later. There is no evidence about his mental capacity to sign a will during the period of hospitalization.

[27] On the facts of this case, I am not concerned about a risk of abuse. The respondent daughters of the deceased agree to the terms of the order sought granting interim (dependent’s) support to the applicant. This is not a case of a disgruntled beneficiary seeking to impose costs on an estate.

Analysis

[28] Counsel for the lawyer agrees that if there was a signed will, he would have produced it under s. 9 of the Estates Act and Geffen. Otherwise, there is no information about the contents of the lawyer’s file as the lawyer is asserting privilege on behalf of the deceased.

[29] There is no estate trustee who can consider waiving privilege as no will has yet been recognized by a grant of probate. No one propounds the old will as being valid and subsisting. This is a “chicken and egg” problem. There is no estate trustee because no existing will has been found. But the applicant wants to look at the lawyer’s files to see if there might be something there that could qualify as a will under s. 21.1 of the SLRA.

[30] I have no doubt that the deceased was speaking to a lawyer about a will as he apparently said he would do. But, despite signing powers of attorney in November, he did not sign a will then or in December when he went to the lawyer’s office again.

[31] In my view, the order of operations matters here. If there was a will produced then a challenge would meet the privilege exception in Geffen based on an assumption that by signing and producing a will the deceased wanted the will to be enforced in accordance with his fixed and final testamentary intention.

[32] The problem with looking at the lawyer’s files before the deceased has expressed his or her testamentary intention in a will, is that it necessarily invades the confidential lawyer client relationship in a manner that cannot be presumed to have been desired by the deceased or to be in his interests.

[33] The questions being explored in this and similar cases is: “Did the deceased have a fixed and final intention that he was not able to execute; or had he not yet arrived at a sufficiently fixed and final intention to do so?” Closely related or even subsumed in these questions is the question of why did the deceased not sign a will when he signed powers of attorney and returned to the lawyer in December.

[34] Looking at the lawyer’s files could disclose the answer to these questions. But, in my view, it cannot be assumed safely that the deceased wished this to occur or that, to use the words of Geffen, “[t]he interests of the now deceased client are furthered” by allowing this evidence to be admitted to ascertain his true intentions.

[35] Geffen assumes that the deceased wanted her intentions as expressed a trust to be carried out so that she would have wanted to give access to her lawyer’s file if necessary to do that. But where a deceased does not sign a will, no such assumption can be made.

[36] In my view, without a will already produced, the chances that the deceased did not yet reach a final decision are at least as great, if not greater, than the chances that he did reach a final decision and just could not get the document signed in time.

[37] If the deceased was ready to sign, then can it not be presumed that he would have done so before he left his lawyer’s office or that the lawyer would have brought the final version to the deceased?

[38] To answer the question of why the deceased did not sign a will (or whether he had already arrived at a fixed and final testamentary intention) one must access the heart of the deceased’s private conversations with his lawyer. What if, hypothetically, he was struggling with whether he wished to leave gifts to particular loved ones? What if, hypothetically, he was expressing to his lawyer concerns about his relationship with a loved one or perhaps prioritizing the distribution of his assets among different loved ones?

[39] Estates conversations about distributions of one’s assets among loved ones are among the most intensely private conversations imaginable that one can have with one’s lawyer. Clients are under an assurance that these conversations are protected and surrounded by the thickest curtain of nearly inviolable lawyer client privilege.

[40] In Blank v. Canada (Minister of Justice), [2006] 2 SCR 319 at para. 26, the Supreme Court of Canada held:

Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.

[41] In Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 at para. 35, the Supreme Court of Canada held that lawyer client privilege must be “as near to absolute as possible to ensure public confidence and retain relevance.”

[42] In my view, these statements of law are as or more applicable in the estate planning context than just about any other area of law. It is hard it fathom more personal and potentially gut-wrenching conversations between a client and a lawyer than about how to provide for loved ones after one is gone.

[43] If one asked a hypothetical person in these circumstances, whether, “to determine if you had already arrived at a fixed and final testamentary intention, would you want your loved ones to see your conversations with your lawyer in which you were questioning or ranking or just discussing your relationships” the answer is as or more likely to be “no” than “yes.”

[44] If the deceased has not signed a will, then I would not presume that he wants his intentions known or that it is necessarily in his interests to disclose his lawyer’s file.

[45] In my view, Justice Wilson’s rationale in Geffen for invading the lawyer client privilege does not apply to a search for near-will documents under s. 21.1 of the SLRA.

[46] Had the deceased reached a fixed and final testamentary intention in this case, in my view, the presumption must be that he would have signed a will. That was the whole purpose of him retaining and meeting multiple times with the lawyer. He signed powers of attorney when ready to do so. In the absence of a signed will (or other signed document as in Geffen) I cannot find that the search for the true intention of the deceased under s.21.1 of the SLRA is necessarily in his interest to a degree needed to justify extending the exception to the lawyer client privilege.

[47] But, I have already found in White, that there was be at least one case in which the exception could apply. That is where there was evidence that a lawyer had a document that was a fixed and final expression of the testamentary intention of the deceased. I do not think that it is enough that there be a draft will as mentioned above. In White, there was evidence that the deceased was ready to sign the document i.e. that the deceased person gave assent or expressed agreement that the draft was final. Otherwise, arguably, it is just another draft among many.

[48] In my view, the facts in White were unique. There was uncontested evidence that the lawyer was attending on the deceased in the hospital to sign the will. The deceased was ready to sign the will but was too ill and tired to do so that day. The lawyer’s counsel expressly denied that the lawyer released any information from the client’s file.

[49] Ms. Madill fairly submits that it should not be left to the lawyer to decide if he or she has a document that is producible as an exception to privilege. Mr. Furrow submits that under the Rules currently in force, our system does leave the initial determination of producibility to the person who has possession or control of a document. In Waters v. Henry et al., 2023 ONSC 4465, at para. 25, Koehnen J. was content with the usual process applying so that the party to whom the document “belongs” makes the first decision on disclosure. But on the facts of that case, there was an estate already constituted and there was therefore a “party” to whom the document belonged. The Rules impose obligations for production and disclosure of documents on the parties. There are checks and balances applicable.

[50] In this case, the lawyer is not a party. The estate has no estate trustee due to the chicken and egg problem mentioned above.

[51] The relevant factors are far too flexible to provide any certainty to the lawyer as to when disclosure of privileged information can be made. In my view, it cannot be up to the lawyer to determine if there is a document that is not electronic and that is evidence of sufficient fixation and finalization of testamentary intentions that might possibly be held to be as valid as a will and thereby become subject to the Geffen exception to privilege.

[52] For a lawyer to form a view that a document is fixed and final without an express statement by the client would necessarily entail a review of the entire file to follow the progress of the development of the client’s instructions to determine a point of finalization.

[53] Even where a lawyer might be able to say that a client has approved a draft will as “final,” it still remains subject to revision by the client. Must there then be a search of the whole file to see if the client ever changed a gift after saying it was “final” and to try to decide whether the client’s statement that a draft was “final” actually made it final?

[54] In my view, the only certainty is that the lawyer must assiduously protect the client’s privilege unless or until it is waived by someone with due authority to do so or a court determines that privilege does not apply.

Outcome

[55] I find that the wills exception to lawyer client privilege does not apply to the search for documents that may support a claim under s.21.1 of the SLRA on the facts of this case.

[56] Accordingly, the motion for production of the lawyer’s file is dismissed. The rest of the motion as between applicant and respondent is granted on consent.

Frederick L. Myers
Date: May 8, 2025

[1] The outcome of the case was unanimously agreed among the five judges who heard it. But Wilson J. was the only judge who discussed privilege. Cory J. concurred with Justice Wilson’s reasoning. The majority of the judges on the panel did not mention a privilege issue.

[2] Subsection 21.1(2) of the SLRA provides that s. 21.1 is subject to s. 31(1) of the Electronic Commerce Act, 2000, S.O. 2000, Chapter 17. Generally speaking, the Electronic Commerce Act, 2000 provides for recognition of electronic documents and electronic signatures in Ontario. But clause 31(1)1 of the statute specifically exempts its application to wills and codicils. The specific adoption of that clause into s. 21.1 of the SLRA presumably therefore is intended to mean that the “document or writing” to which s. 21.1 may apply must be in physical or hard copy form rather than just a digital document on someone’s computer. I do not know whether this would have undermined the result in Grattan or perhaps a different basis may have existed to find the document in that case satisfied s. 21.1.

[3] White v. White, 2023 ONSC 7286 at para. 63.

[4] The applicant submits that these statements meet the principled exception to the hearsay rule because the deceased has died and cannot be cross-examined. I agree that the “necessity” requirement is met. Even if these statements could meet the “reliability” hurdle (which I doubt) it does not matter to the outcome. The statements by the deceased of his future intention does not help determine if the Geffen exception applies to the lawyer’s file for the purposes of s. 21.1 of the SLRA. We know he was discussing preparing a will with his lawyer. There would be no file and no motion otherwise. See: R. v. Khelawon, 2006 SCC 57.