Court File and Parties

Court File No.: CV-22-90436-00ES Date: 2025-08-12 Superior Court of Justice – Ontario

Re: Karen Butt and Grace Aleah Kelly, in their personal capacities, Claire Marie Kelly, and Ava Noelle Kelly, by their Litigation Guardian, Karen Butt, Applicants

And: The Estate of Robert John Kelly and Robyn Graham in her personal capacity and in her capacity as Executrix and Trustee of the Estate of Robert John Kelly, Respondents

Before: The Honourable Mr. Justice Marc Smith

Counsel:

• Yasmin M. Vinograd / Ines Jelic, Counsel for the Applicants
• Patrick Snelling, Counsel for the Respondents

Heard: July 8, 2025

Reasons for Decision

M. SMITH J

Overview

[1] The Applicant, Karen Butt (the "Applicant") brings this motion pursuant to Rules 75.06, 30.10 and 31.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("Rules") for: (i) the production of all lawyer records, notes and files of Angela Daniels of Daniels Law Firm, relating to legal services provided to the late Robert John Kelly ("Mr. Kelly") in or around May 2021 concerning but not limited to, his separation from the Respondent, Robyn Graham (the "Respondent"), estate planning, and financial affairs; and (ii) leave to examine Ms. Daniels and/or any relevant employee of Daniels Law Firm concerning those services.

[2] The Respondent submits that Ms. Daniels' files should not be produced because they are subject to solicitor-client privilege that survives Mr. Kelly's death and is not subject to the wills exception to solicitor-client privilege.

[3] Ms. Daniels is not taking a position on this matter.

Brief Facts

[4] The Applicant and Mr. Kelly were married and separated on October 24, 2013. They share three children. The Applicant obtained a judgment against Mr. Kelly in the Superior Court of Québec where Mr. Kelly was ordered, amongst other things, to pay the Applicant the sum of $186,015.12 for the division of net family property and retroactive child support and spousal support.

[5] The Respondent and Mr. Kelly commenced a relationship in or around 2015 and separated in or around March 2021 because of Mr. Kelly's alcohol use disorder. The Respondent filed a police report against Mr. Kelly in May 2021.

[6] Between January and May 2021, Mr. Kelly sent the Applicant text messages in an attempt to rekindle the relationship.

[7] On or about May 19, 2021, Mr. Kelly consulted with Ms. Daniels for legal advice regarding his separation from the Respondent.

[8] On or about June 11, 2021, Mr. Kelly was hospitalized, and he remained in hospital until August 12, 2021. The Respondent frequently visited Mr. Kelly during his hospitalization, and she became more involved in his life.

[9] It is alleged that towards the end of June, early July 2021, Mr. Kelly was no longer coherent.

[10] On July 6, 2021, Mr. Kelly executed a Power of Attorney for Personal Care appointing the Respondent.

[11] On July 16, 2021, Mr. Kelly executed a change in beneficiary designation for his Supplementary Death Benefit, designating the Respondent as 100% beneficiary.

[12] On July 26, 2021, Mr. Kelly executed a Power of Attorney for Property appointing the Respondent.

[13] On August 4, 2021, Mr. Kelly executed a change to his life insurance policy, naming the Respondent 40% beneficiary and each of the Applicant and Mr. Kelly's children as 20% beneficiaries.

[14] On August 8, 2021, Mr. Kelly executed a Last Will and Testament, naming the Respondent as the sole estate trustee, leaving 20% of the Estate to each of the Applicant and Mr. Kelly's three children, $1 to the Applicant, $5,000 to a church, and the residue of the Estate to the Respondent.

[15] On August 12, 2021, Mr. Kelly was discharged from the hospital and brought to the Respondent's home. Mr. Kelly passed away on August 25, 2021.

Issues

[16] The issues to be determined are:

i. Should the court order the production of Ms. Daniels' records?

ii. Should the court permit Ms. Daniels' examination in relation to the legal services provided?

Legal Principles

[17] Rule 75.06 of the Rules allows any person who appears to have a financial interest in an estate to move for directions.

[18] Pursuant to r. 30.10(1) of the Rules, the court has discretion to order the production of documents from non-parties that are not privileged, are relevant to a material issue in the proceeding, and where it would be unfair to require the moving party to proceed without discovery of such documents.

[19] Pursuant to 31.10(1) of the Rules, the court may grant leave to examine for discovery a non-party if there is reason to believe that this person has relevant information to a material issue in this action.

[20] Where solicitor-client privilege is claimed, there exists an exception known as the wills exception, which allows the court to order production of a solicitor's records to determine the testator's true intentions. The justifications for the exception are: (i) to hold otherwise would deprive the party contesting the will of a considerable part of the proof of its case; and (ii) the essence of a will challenge is to determine the testator's intention. A principled approach to admissibility questions, as opposed to a "pigeon hole" approach to rules of evidence, must prevail: Geffen v. Goodman Estate, [1991] 2 SCR 353, at p. 384-387.

[21] The wills exception can extend to the production of unredacted documents relevant to the testator's intention and which disclosure may have provided information about the testator's capacity, susceptibility to undue influence and the nature of the relationship with the other party: Waters v. Henry, 2023 ONSC 4465, at para. 22.

Analysis

Issue #1 – Should the court order the production of Ms. Daniels' records?

[22] There is no question that the Respondent's reappearance in Mr. Kelly's life, shortly before his death, coupled with allegations of lack of capacity and subsequent changes to various testamentary documents, raises some serious suspicions vis-à-vis Mr. Kelly's susceptibility to undue influence.

[23] When undue influence and lack of capacity are at the crux of a case, as it is here, the court must carefully examine and assess the relationship to determine if one party has the potential to dominate the other.

[24] I recognize that the evidence before me seems to suggest that Ms. Daniels was only retained by Mr. Kelly to deal with his entitlement to property following the separation from the Respondent. However, Mr. Kelly's meeting with Ms. Daniels in May 2021 is so closely related in time to the creation of testamentary documents in July and August 2021 under suspicious circumstances, that this solicitor-client relationship becomes very relevant to the issues in this case. As such, I am prepared to extend the wills exception to this case.

[25] Ms. Daniels' retainer occurs during a critical window when Mr. Kelly was planning his financial affairs, including advancing property claims against the Respondent. Shortly after receiving a letter from Ms. Daniels, the Respondent advises the Applicant as follows: "And I just heard from Robs attorney. Guess he's going to try and get your money out of me." Mr. Kelly and the Respondent were not on great terms at this point. She was making disparaging remarks about Mr. Kelly, and she filed a police report on or about May 19, 2021. Then, within approximately one month, everything changed vis-à-vis the relationship between Mr. Kelly and the Respondent.

[26] Mr. Kelly's adversarial approach towards the Respondent in May 2021 takes a significant turn in June 2021, shortly after his hospitalization and rapid deterioration. Not only does it appear that Mr. Kelly abandons all property claims against the Respondent, but he appoints the Respondent as power of attorney giving her full access to his finances, designates the Respondent as a beneficiary on his Supplementary Death Benefit and life insurance policy, and appoints her as the Estate Trustee and she becomes a significant beneficiary of his estate. After the execution of the testamentary documents, Mr. Kelly moves in with the Respondent for a period of approximately two weeks, until his death. Moreover, Mr. Kelly acted in this manner, all while having wished to rekindle his relationship with the Applicant.

[27] In addition, all the testamentary documents were not prepared by a lawyer, but were signed while Mr. Kelly was hospitalized, and the witnesses to Mr. Kelly's execution of the testamentary documents are purported to be friends of the Respondent.

[28] While the hospital records will speak to Mr. Kelly's capacity, I find that Ms. Daniels' records are the only existing legal documents, within a reasonable nexus of time (i.e. less than two months before the creation of the first power of attorney) and before Mr. Kelly's hospitalization, that are likely to provide some insight into his true intentions as to the planning of his financial affairs, which I believe includes his estate, his outstanding support obligations to the Applicant and his children, and his initial dispute with the Respondent.

[29] Lack of capacity and undue influence are at the heart of this case. It is therefore important to ascertain Mr. Kelly's true intentions regarding his execution of the testamentary documents and the production of Ms. Daniels' records will speak to these intentions, his relationship with the Respondent and his susceptibility to undue influence.

[30] Although Ms. Daniels' involvement with Mr. Kelly does not appear to extend to the creation of documents changing the life insurance policy, beneficiary designations, and/or the Last Will and Testament, I am satisfied that it is part of Mr. Kelly's broader estate planning.

[31] In the circumstances of this case, the interest of justice demands the production of Ms. Daniels' file. The integrity of the testamentary process outweighs the interests of maintaining the solicitor-client privilege.

[32] Within 30 days of these Reasons for Decision, Ms. Daniels shall deliver a complete copy of her file with respect to Mr. Kelly.

Issue #2 - Should the court permit Ms. Daniels' examination in relation to the legal services provided?

[33] Given my conclusion on Issue #1, it follows that the court should permit Ms. Daniels' examination in relation to the legal services provided.

[34] Ms. Daniels can provide information regarding Mr. Kelly's instructions and his intentions during a very relevant time period. It is my understanding that Ms. Daniels' examination will not lengthen the proceedings. Also, it will not result in any unfairness to Ms. Daniels, and she will be compensated for her attendance.

Disposition

[35] For the foregoing reasons, the Applicant's motion is granted.

[36] I encourage the parties to agree on the issue of costs. If they are unable to do so, the Applicant shall file and serve her costs submissions within 15 days of these Reasons for Decision, limited to three pages, excluding the Bill of Costs and Offers to Settle. The Respondent shall file and serve her costs submissions, within 15 days thereafter, with the same page restrictions.

M. Smith J

Released: August 12, 2025