Rogers v. Ferretti, 2026 ONSC 2210
ONTARIO
SUPERIOR COURT OF JUSTICE
(Estates List)
IN THE MATTER OF THE ESTATE OF PATRICIA MARY FERRETTI, Deceased
BETWEEN:
JEFFREY ROGERS, GREGORY ROGERS, and ASHLEIGH ROGERS
Applicants
– and –
JOSEPH FERRETTI, in his personal capacity and in his capacity as Estate Trustee of the ESTATE OF PATRICIA MARY FERRETTI
Respondent
Emily Caza and Joanna Weiss, for the Applicants
Margaret Rintoul, for the Respondent
Alexandra Mayeski, for the Non-Party, Lawrence Enfield
HEARD: March 23, 2026
REASONS FOR DECISION
A.A. SANFILIPPO J.
Overview
1Patricia Mary Ferretti died on December 15, 2023 at the age of 95 (“Patricia” or the “Deceased”), predeceased by her spouse, Julien ‘Fred’ John Ferretti, who died on November 15, 2015 (“Fred”). The Deceased and Fred had two children: the Respondent, Joseph Ferretti; and Diane Rogers, who predeceased her mother on September 3, 2017.
2Patricia was estranged from her son, Joseph, from 2009 to 2019. During this time, Patricia arranged for three wills, in 2011, 2017, and 2019, each of which named Joseph as a beneficiary in the residue of her estate notwithstanding the rupture of the relationship between them. In the last will and testament executed by Patricia on July 6, 2019 (the “July 2019 Will”), after Diane’s death, Joseph shared in Patricia’s estate equally with Diane’s three children, the Applicants, Jeffrey Rogers, Gregory Rogers, and Ashleigh Rogers (collectively, the “Applicants” or “Diane’s Children”).
3Joseph re-entered Patricia’s life on August 26, 2019. Sixteen days later, on September 11, 2019, Joseph arranged for Patricia to meet with a different lawyer than Patricia had retained to assist in her previous wills and Patricia executed a new will naming Joseph as an estate trustee, but still with equal distribution of the residue of her estate between Joseph and Diane’s Children (the “September 2019 Will”). On November 5, 2020, Patricia executed a last will and testament prepared by the lawyer identified by Joseph, naming Joseph as the sole estate trustee and sole beneficiary of the residue of Patricia’s estate (the “2020 Will”).
4After Patricia’s death, Joseph was appointed as the trustee of the Estate. Upon learning of the 2020 Will, Diane’s Children brought this Application challenging the validity of the 2020 Will and the September 2019 Will, and propounding the validity of the last will executed by Patricia before Joseph re-entered her life: specifically, the July 2019 Will. Joseph defends the 2020 Will as valid and effective and denies that the Applicants have established a minimal evidentiary basis for their demand that the 2020 Will or the September 2019 Will be proven.
5The Applicants sought production of financial, medical, and solicitor’s records on the basis that these records are relevant to their will challenge. Joseph denied this production and submitted that this Application should be dismissed because the Applicants did not meet the minimal evidentiary threshold necessary to require that the 2020 Will be proven. This hearing of this Application focused on this single issue.
6On the basis of the reasons set out herein, I find that the Applicants have established the minimal evidentiary threshold necessary to require that the 2020 Will and the September 2019 Will be proven in solemn form. As a result, an Order shall issue for the production of the financial, medical, and solicitor’s records relevant to the issues raised by this Application.
7For clarity, I will refer to the family members in these Reasons by their first names, respectfully.
I. UNCONTESTED FACTS
8Many of the facts that form the factual context for the analysis of this Application were not contentious in that they were either uncontested by competing evidence, admitted in responding affidavit evidence, unchallenged or conceded in the out-of-court cross-examinations, or stipulated in argument. I will begin by setting out these facts.
A. The Deceased’s Family
9Patricia and Fred lived in a residential property known municipally as 212 Arichat Road, Oakville, Ontario (the “Property”), which they owned together in joint tenancy. On September 25, 2007, Patricia executed a Continuing Power of Attorney for Property prepared by solicitor Lawrence Enfield, constituting Fred and Diane as her joint attorneys for property.
10Joseph was estranged from his mother, father, and sister and her family in the decade from 2009 to 2019. During this time, Patricia lost her husband, Fred, and her daughter, Diane, while Joseph remained distant. After Diane’s death on September 3, 2017, Diane’s husband, Glen Rogers, and Diane’s Children (collectively, the “Rogers Family”) remained involved in Patricia’s life. Joseph, together with his spouse, Janet Kitson, and their two adult children, Jacob Ferretti and Joshua Ferretti, re-engaged in Patricia’s life on and after August 26, 2019, and would remain involved until Patricia’s death on December 15, 2023.
11The Deceased’s will-making took place within this family dynamic.
B. Patricia’s Estate Planning Prior to Diane’s Death
12The Applicants tendered an unsigned “file copy” of a last will and testament dated March 24, 2011, prepared by Mr. Enfield for Patricia (the “2011 Unsigned Will”). The 2011 Unsigned Will provided that if Fred should predecease Patricia, the Property was to be transferred to Diane, who was named as Estate Trustee, and the residue of Patricia’s Estate was to be divided with three shares (75%) to Diane and one share (25%) to Joseph, to the extent of $300,000.
13On May 31, 2011, Diane was added to an account held by the Deceased with the Borovilos Financial Group, which held, at that time, the amount of $664,009 (the “Joint Borovilos Account”). In or around late 2012, Fred moved into a long-term care facility, while Patricia continued to reside in the Property. On November 15, 2015, Fred died. On June 22, 2017, in the context of Diane’s deteriorating health resulting from her terminal illness, Patricia transferred $800,933.60 from the Joint Borovilos Account to an account held by Diane alone, at CIBC Wood Gundy (the “June 2017 Transfer”). On September 3, 2017, Diane died.
C. Patricia’s Estate Planning after Diane’s Death
14On September 26, 2017, Patricia executed a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care (collectively, the “2017 POA”) appointing Glen as her attorney for property and attorney for personal care. Jeffrey testified that on the same day, Patricia executed a further last will and testament prepared by Mr. Enfield that named Glen as the Estate Trustee, with Jeffrey as an alternate trustee, and directed that the residue of the Estate was to be distributed as follows: one share (50%) to Diane’s Children, with each child receiving an equal one third sub-share; and one share (50%) to Joseph, but if Joseph were to predecease the Deceased, his share would be divided equally between the Applicants.
15On September 27, 2017, Patricia registered a survivorship application as instrument number HR 1492400 to become the sole owner of the Property.
16On July 6, 2019, Patricia executed the July 2019 Will prepared by solicitor James Marrelli that had, amongst others, the following features:
(a) Glen was appointed as Estate Trustee, and his son Jeffrey was named as alternate trustee.
(b) The Deceased made a specific bequest of $5,000 to her sister, Evelyn Abbott.
(c) A loan of $36,000 that the Deceased’s husband, Fred, had advanced to Joseph was directed to be forgiven and not taken into consideration in the distributions of the residue of the Estate (“Joseph’s $36,000 Loan”).
(d) The Property was to be listed for sale, with the net sale proceeds forming part of the residue of the Estate.
(e) The residue of the Estate was to be distributed as follows: one share (50%) to Diane’s Children (the Applicants), with each child receiving an equal one third sub-share; one share (50%) to Joseph, but if Joseph were to predecease the Deceased, Joseph’s share would be distributed equally between his sons, Joshua and Jacob.
17On August 23, 2019, Joseph spoke with Patricia, ending 10 years of estrangement. On August 26, 2019, Joseph had his first meaningful visit with Patricia since July 2009.
D. Patricia’s Estate Planning After Re-Engaging with Joseph
18On September 11, 2019, some 16 days after meeting with his mother for the first time in a decade, Joseph arranged for Patricia to meet with solicitor Tyrone Crawford, a lawyer known to Joseph and his spouse, Janet Kitson. On that day, Patricia executed the September 2019 Will, which was prepared in the name of “Patricia Mary Abbott” that had, amongst others, the following features:
(a) For the first time, Joseph was named as a co-Estate Trustee, to act jointly with Glen.
(b) The Deceased’s bequest to her sister, Evelyn, remained unchanged.
(c) The forgiveness of Joseph’s $36,000 Loan remained.
(d) The residue of the Estate was to be distributed as follows: one share (50%) to Diane’s children (the Applicants), with each child receiving a one third sub-share; one share (50%) to Joseph.
19In the period from December 2019 to February 2020, Patricia became ill and was eventually hospitalized with a respiratory infection diagnosed as pneumonia. On February 25, 2020, Patricia was released from hospital and returned home with care by personal support workers (“PSWs”). In the period after March 2020, Patricia took four steps that provided Joseph with control over her assets, as follows:
(a) On March 16, 2020, some two weeks after release from hospital, Patricia granted a Continuing Power of Attorney by which she appointed Joseph as the sole attorney of her property (the “March 2020 POAP”).
(b) Some three days later, on March 19, 2020, the Property was transferred by registered instrument number HR 1690840 from registered ownership by the Deceased, alone, to ownership in joint tenancy with Joseph (the “March 2020 Property Transfer”).
(c) By August 2020, Joseph was added as an account holder on the Deceased’s bank accounts, excluding an investment account, and became the beneficiary of her Registered Retirement Income Fund.
(d) On October 31, 2020, Joseph transferred approximately $748,446 from a CIBC Wood Gundy Investment Account owned by the Deceased to an account held jointly by Joseph and the Deceased (the “October 2020 Transfer”).
20On November 5, 2020, Patricia executed the 2020 Will, prepared by Mr. Crawford in the name of “Patricia Mary Abbott”, that had, amongst others, the following features:
(a) Glen is removed as co-Estate Trustee, and Joseph is named as the Estate Trustee, with his sons, Joshua and Jacob as alternates.
(b) The Deceased’s bequest to her sister, Evelyn, remained unchanged.
(c) Diane’s Children are removed as beneficiaries in the residue of the Estate, with the result that Joseph is named as the sole residuary beneficiary.
21On June 26, 2022, Patricia’s sister, Evelyn Abbott died. This left Joseph as the only beneficiary under the 2020 Will. Patricia died on December 15, 2023.
E. Events Occurring after Patricia’s Death
22On January 26, 2024, Joseph transferred title to the Property to Joseph, alone, by Survivorship Application, with the transfer registered as instrument number HR 2013150. On May 13, 2024, Joseph disclosed the 2020 Will to the Applicants. On December 13, 2024, Diane’s Children brought this Application.
II. THIS APPLICATION
23In this Application, the Applicants challenge the validity of the 2020 Will and the September 2019 Will (collectively, the “Challenged Wills”), on the basis that Patricia lacked testamentary capacity at the time of giving instructions and execution of these wills, that these wills were procured by undue influence, duress, or pressure by Joseph, and that these wills were not duly executed in accordance with the requirements of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). The Applicants seek a declaration that the July 2019 Will is the valid and effective will governing the administration of the Estate. The Applicants also challenge the validity of the inter vivos transfers of property and assets from Patricia to Joseph on the grounds that Patricia was incapable at the time of transfer and that the transfers resulted from undue influence by Joseph.
24Joseph denies all the claims advanced by the Applicants and pleads that the 2020 Will is valid and effective and thereby governs the administration of the Estate. Joseph pleads that the inter vivos transfers of property and assets from Patricia to Joseph are valid and effective and that these assets and property are not subject to any trust.
25By Order Giving Directions granted on the consent of the parties on September 26, 2025, I ordered that the Respondent is prohibited from sale or transfer of property and assets formerly belonging to Patricia and ordered that this Application would be heard, in part, on March 23, 2026 for determination of a single issue: specifically, whether the Applicants were entitled to disclosure and production of financial records, medical records, and solicitors’ records based on the application of the minimal evidentiary threshold analysis.
III. APPLICABLE LEGAL PRINCIPLES
26There was no dispute on the legal principles applicable to the determination of whether the Applicants have met the threshold to support their claim that the Challenged Wills be proven in solemn form. Rather, the parties’ dispute focused on the application of these principles to the evidence tendered in this Application.
27I adopt the summary of applicable principles as set out in Zarrin-Mehr v. Shokrai, 2024 ONSC 1754, at paras. 21-27.
28Rule 75.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that “any person appearing to have a financial interest in an estate” may apply under Rule 75.06 to have the last will and testament proved “in such manner as the court directs”. There is no dispute that the Applicants, as grandchildren of the Deceased and residuary beneficiaries in the three wills that were prepared for, or executed by the Deceased before the 2020 Will, are persons who “[appear] to have a financial interest in the Estate”, for the purposes of Rules 75.01 and 75.06.
29In Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 77, the Court of Appeal explained that to prove a will in solemn form, the person propounding the will must establish “that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will.” The person propounding the will has “the legal burden of proof with respect to due execution, knowledge and approval, and testamentary capacity”, after which there is a rebuttable presumption of validity: Neuberger, at para. 78, referring to Vout v. Hay, [1995] 2 S.C.R. 876, at paras. 26-27. The Court’s jurisdiction in probate is inquisitorial: Neuberger, at para. 68. In carrying out its inquiry into the validity of the will, the Court has a special responsibility to the testator who cannot be present to be heard: Neuberger, at para. 118
30In Neuberger, at para. 82, the Court of Appeal accepted that “as a general principle, before probate issues an interested person has the right to request formal proof of the testamentary instrument” but the Court of Appeal did “not accept that this general principle means that the interested person is entitled, as of right, to require that the testamentary instrument be proved in solemn form.” Rather, the Court of Appeal explained, at para. 88, that an interested person must meet some minimal evidentiary threshold before a court will require that a will be proven in solemn form. Otherwise, the estate could unnecessarily be put to needless expense and litigation to defend a testamentary instrument only because a “disgruntled relative or other potential beneficiary makes a request for proof in solemn form.” To meet the minimal evidentiary threshold, the party requesting that the testamentary instrument be proved “must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”: Neuberger, at para. 89.
31The “minimal evidentiary threshold” standard for applications for wills to be proved in solemn form was applied by Justice Myers in Seepa v. Seepa, 2017 ONSC 5368, by the Court of Appeal in Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, and then by Justice Myers in three decisions in 2023: Giann v. Giannopoulos, 2023 ONSC 5412; Carinci v. Carinci, 2023 ONSC 6094; and Dinally v. Dinally, 2023 ONSC 6178. From a survey of this jurisprudence, the following principles emerge regarding the application of the minimal evidentiary threshold:
(a) The burden is on the Applicant to adduce some evidence which, if accepted, would call into question the validity of the will: Neuberger, at para. 89; Johnson, at paras. 8 and 12; Giann, at para. 18.
(b) The evidence adduced by the Applicant does not need to be proved at the time of establishing the minimal evidentiary threshold. The evidence must support the claim if accepted at a dispositive hearing, but “the preliminary vetting process is not to be confused with making findings of fact at trial”: Giann, at paras. 18 and 25.
(c) The evidentiary threshold is low, and proof of the case on the merits or meeting the standard of a genuine issue requiring a trial is not required: Johnson, at para. 17; Seepa, at para. 35; Gilbert v. Girouard, 2023 ONSC 4445, at para. 29, citing Morrish v. Katona, 2021 ONSC 3805, 72 E.T.R. (4th) 332, at para. 49; Martin Estate v. Martin, 2018 ONSC 1840, 38 E.T.R. (4th) 161, at para. 35.
(d) If the Applicant establishes evidence supporting the request for the will challenge, the responding party has an opportunity to answer the evidence and, if the responding party does so successfully, the will challenge is dismissed: Neuberger, at para. 89; Johnson, at para. 8; Giann, at para. 17.
(e) Bald or conclusory assertions of wrongdoing alleged by the party challenging the will, and bare allegations and mere suspicions are insufficient to satisfy the minimal evidentiary threshold: Giann, at para. 108; Dimakarakos v. Alimena, 2022 ONSC 4386, at para. 19; Gilbert, at para. 27; Dinally, at paras. 39-46.
32These principles guide my analysis of whether the Applicants have established the minimal evidentiary threshold necessary to require that Joseph prove the validity of the Challenged Wills.
IV. ANALYSIS
A. The Applicants’ Burden to Establish the Minimal Evidentiary Threshold Necessary to Require Proof of the Challenged Wills
33The Applicants based their dispute of the Challenged Wills on several grounds and submitted that they have established sufficient evidence to meet the minimal evidentiary threshold to require proof of the 2020 Will, including the production of financial, medical, and legal records. Joseph disagrees.
34First, the Applicants submitted that the Challenged Wills were not properly prepared or executed because Mr. Crawford drafted the Challenged Wills in the name of “Patricia Mary Abbott”, Patricia’s maiden name, rather than in the name of “Patricia Mary Ferretti”, the name by which Patricia was known as reflected on her legal documents. Patricia affixed her signature on the Challenged Wills with her legal name, “Patricia Mary Ferretti”, as she did the March 2020 POAP, even though these documents were prepared by Mr. Crawford in the name of “Patricia Mary Abbott”.
35Joseph deposed that Mr. Crawford prepared testamentary documents for Patricia using her maiden name because Patricia had only her birth certificate available at the time of the meeting with Mr. Crawford. This evidence was called into question by Joseph’s admission, in cross-examination, that Patricia had other forms of identification that showed her legal name of Patricia Mary Ferretti. Further, Mr. Crawford acted on the March 2020 Property Transfer, wherein the Property was transferred from “Patricia Mary Ferretti” to “Patricia Mary Ferretti” and Joseph in joint title, showing an understanding of Patricia’s legal name.
36I accept the Applicant’s submission that the use of Patricia’s maiden name in the Challenged Wills, rather than her legal name, “Patricia Mary Ferretti”, is a factor that supports the Applicants’ claim for proof of the Challenged Wills.
37Second, the Applicants submitted that Patricia’s medical conditions in the years leading to the execution of the Challenged Wills show that she was vulnerable and susceptible to undue influence. By May 2017, Patricia had a medical condition that impacted her ability to leave her home, to such an extent that her treating physician supported her exemption from the requirement to have a picture on her health card so that she would not have to leave the home to attend at the government office. I saw no dispute that Patricia suffered from anxiety and that Patricia’s home was in an extreme hoarding condition. Glen deposed that when Patricia was able to be discharged from hospital in January 2020, he was informed by her medical caregivers that Patricia’s home had to be deep cleaned for her return and that she required PSWs for her daily care.
38I accept the Applicant’s submission that the evidence that has been tendered of Patricia’s health and medical circumstances in the period leading to the execution of the Challenged Wills supports an inquiry into the proof of the Challenged Wills.
39Third, the Applicants relied heavily on the submission that Patricia’s sudden departure from her long-standing and consistent testamentary intentions gives rise to suspicious circumstances in support of their contention that Joseph unduly influenced Patricia in her execution of the Challenged Wills. The chronology of Patricia’s will-making shows that Patricia provided for both her children, Diane and Joseph, in her series of wills from 2011 to 2019. Importantly, even during the decade in which Patricia was estranged from Joseph, Patricia nonetheless provided Joseph with a share in her Estate. From 2017 to 2019, Patricia routinely provided an equal share to Joseph and Diane, and upon Diane’s death, to Diane’s Children. The 2020 Will is a remarkable departure from Patricia’s history of equally providing for her children by distributing the entirety of her Estate to Joseph. The March 2020 Property Transfer was inconsistent with Patricia’s sole ownership of the Property and Patricia’s intention to pass the Property as part of the residue of her Estate, as seen through her wills from 2017 to 2019.
40Further, the Applicants submitted that the unexplained rapid pace by which Patricia changed her will upon Joseph’s re-entry into her life, and the selection of counsel by Joseph and Janet, raised suspicion about undue influence. Only 16 days after Joseph’s reconciliation with his mother, he arranged for Patricia to meet with Mr. Crawford. Janet testified that she is a paralegal and, in that capacity, once worked for Mr. Crawford. Janet testified that Mr. Crawford had prepared wills for her and Joseph, and that she referred work to Mr. Crawford, and that he referred work to her.
41Patricia executed the September 2019 Will on the same day that she first met Mr. Crawford. Patricia executed the 2020 Will after being released from a period of hospitalization and deteriorating health. Patricia executed the 2020 Will, transferred an interest in the Property to Joseph and transferred $748,446 to an account owned jointly with Joseph in rapid succession during the onset of the Covid pandemic and a period of increased social isolation. Joseph did not notify Glen or the Applicants of Patricia’s execution of the 2020 Will, in which they were disentitled as beneficiaries, until May 13, 2024, over four years after execution, even though Glen was named as an estate trustee under the previous wills.
42Having considered all the evidence, I accept that the Applicants have established some evidence which, if accepted, would call into question the validity of the Challenged Wills. The threshold of required evidence is low, and proof of the case on its merits is not required at this stage. The Applicants’ evidence must be evidence that supports the claim if proven at trial. The Applicants’ evidence of Patricia’s circumstances and vulnerable health conditions, her admitted susceptibility to undue influence, and the suspicious circumstances surrounding her making of the Challenged Wills support, in my determination, that the Challenged Wills be proven.
B. The Respondent’s Answer
43Having discharged their burden of adducing evidence that calls into question the validity of the Challenged Wills, the Responding Party, Joseph, has an opportunity to answer the evidence and, if so, the will challenge will be dismissed. In my determination, Joseph failed to answer the evidence presented by the Applicants for the following reasons.
44Regarding Patricia’s medical and health conditions, Joseph did not dispute Patricia’s frailty or her hoarding. Indeed, Joseph deposed that photos tendered by the Applicants showed that Patricia’s hoarding could be traced to 2017, and that he worked with Glen and others to deep clean Patricia’s home in 2020. There was no dispute that Patricia required the care and support of PSWs upon discharge from hospital in January 2020. Joseph submitted that Patricia was vulnerable and susceptible to undue influence by Diane and Glen, pointing to the June 2017 Transfer to Diane of $800,933.60. I found a strange inconsistency in Joseph’s submission that Patricia was vulnerable and susceptible to undue influence when this undue influence was allegedly perpetrated by Diane and Glen in 2017, but not susceptible to undue influence in the period from September 2019 to November 2020 in the execution of the Challenged Wills, when Patricia’s medical conditions, hospitalization, and aging made her increasingly frail, vulnerable, and isolated.
45Regarding Patricia’s departure in the 2020 Will from her history of equal distribution to her children, Joseph and Diane (and Diane’s Children after their mother’s death), Joseph deposed that he had a rational explanation for Patricia’s change in her testamentary intentions. Joseph swore that Patricia told him that she wanted Diane’s Children removed as beneficiaries under the 2020 Will because she was “livid at the news” that the Rogers Family had taken or destroyed her financial records, because Patricia did not appreciate that the June 2017 Transfer had resulted in Diane and her family receiving $800,933.60, and because she was angry that Glen and Diane’s Children had, without her consent, thrown away her heirlooms. Joseph deposed that Patricia told him that “she was taking them all (the Rogers Family) out of her Will and leaving her Estate to [Joseph]" because "[s]he was done with all of them for the way they had lied about her and to her and the way they had mistreated her, as she put it, for their complete lack of human compassion and care.”
46Joseph’s evidence of Patricia’s communications to him on the reasons for her unequal distribution is hearsay and therefore presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2-3 and 34. Hearsay may be admitted into evidence if it comes within certain categorical exceptions which were established in recognition that some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”, including the principled exception, which requires that the tendering party establish the twin criteria of necessity and reliability: Khelawon, at paras. 2, 42, and 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Further, section 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires corroboration of this hearsay evidence.
47Joseph submitted that his evidence of Patricia’s statements can be shown to be inherently trustworthy and thereby reliable, and indeed corroborated, by Patricia’s conduct in removing Diane’s Children as beneficiaries under the 2020 Will. First, I do not accept this submission because it is circular. Joseph’s hearsay evidence of Patricia’s testamentary intention cannot be offered as a validation, or reasonable explanation for Patricia’s conduct in disinheriting Diane’s Children when the foundation for Patricia’s remarkable change in her long-established testamentary intention is the impugned hearsay evidence. Second, I have concerns regarding the plausibility of Joseph’s evidence, even if admitted. Patricia had never disinherited Joseph notwithstanding a decade of estrangement, showing forgiveness, tolerance, and understanding. This is inconsistent with summarily disinheriting Diane’s Children in the manner testified by Joseph. Last, Joseph’s hearsay evidence of intentions expressed to him by Patricia is self-serving because the evidence only stands to benefit Joseph, enhancing the necessity for corroboration or safeguards to ensure reliability.
48Regarding the circumstances of Patricia’s referral to a lawyer unknown to Patricia, but with whom Janet had a working relationship, Joseph responded by emphasizing that Mr. Enfield was a professional acquaintance of Glen’s and that they had mutual clients. I do not find Joseph’s testimony compelling that his referral of Patricia to a lawyer with whom he and Janet had a relationship does not merit any further enquiry simply because Glen had referred Patricia to a lawyer with whom he had a business relationship.
C. Conclusions
49I adopt Justice Myers’ finding in Seepa, at para. 35, that “[a]t this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits”. In my view, the Applicants have established the minimal evidentiary threshold necessary to require proof of the Challenged Wills, and particularly the 2020 Will that Joseph seeks to propound, based on Patricia’s circumstances, vulnerability, and deteriorating health conditions, Patricia’s admitted susceptibility to undue influence, and the suspicious circumstances surrounding her making of the Challenged Wills. For the purposes of my analysis, I find that the Respondent did not answer this evidence.
50On these findings, the medical, financial, and legal production sought by the Applicants do not constitute “the needless expense and delay of a fishing expedition”, as cautioned against in Johnson, at para. 16 and Seepa, at para. 49. Rather, I find that the Applicants have established that these tools are necessary to the determination of the issues raised by this Application.
51Last, regarding the scope of production from the will drafting solicitors, the lawyer for Mr. Enfield submitted that the production of his file materials was unnecessary because no one is challenging the wills that he prepared for Patricia in the period from 2011 to 2017. The parties jointly submitted that if the Applicants should meet the minimal evidentiary threshold, as I find they have, that Mr. Enfield’s records should be produced as relevant to Patricia’s testamentary intentions and the issue of Diane’s and Glen’s influence on Patricia. I accept this joint submission and order the production of Mr. Enfield’s file material.
V. DISPOSITION
52I order:
(a) the Parties are hereby entitled to compel production of all solicitors’ records respecting the Deceased’s estate planning, property management, power of attorney documents, and real estate transactions in the possession, power, or control of Lawrence A. Enfield (“Mr. Enfield”) of Enfield Wood Lawyers, James Marrelli (“Mr. Marrelli”) of Marrelli & Co., and Tyrone Crawford (“Mr. Crawford”), in the same manner and to the same extent as the Deceased would have been able if she were alive.
(b) the Parties are granted leave to examine Mr. Enfield, Mr. Marrelli, and Mr. Crawford regarding their involvement in the preparation of any of the Deceased’s wills, codicils, other testamentary documents, or real estate transactions, as well as any witness to the preparation or execution of any will or codicil of the Deceased.
(c) the Parties are entitled to compel production of all financial records, banking records, tax returns, notices of assessments, and files relating to all assets held by the Deceased, whether those assets were held solely by the Deceased or jointly with another person or person(s), for the period from January 1, 2017 to the date of this Order, from any financial institution, investment, trust, banking institution, or credit union, agency, insurance company, accountant, or advisor, in Ontario, in the same manner and to the same extent as the Deceased would have been able if she were alive.
(d) the Parties are entitled to compel production of all medical records, health care records, OHIP records and summaries, files, notes, charts, and documents relating to the Deceased, for the period from January 1, 2017 to the Deceased’s date of death, being December 15, 2023, from any doctor, hospital, care provider, or medical professional in the same manner and to the same extent as the Deceased would have been able if she were alive.
(e) any claim in respect of the Deceased, of lawyer/client privilege, financial advisor/client privilege, medical privilege or any other professional privilege, or the duty of confidentiality relating to the documents ordered to be produced, shall be and hereby is waived by the order giving directions herein, inclusive of any privacy regulations and legislation which may prohibit the obtaining of such information.
53The Applicant may prepare and, after approval as to form and content by the Respondent, file on the Case Center bundle for this hearing (005) a draft Order consistent with this disposition and may then forward the draft Order by email to the Court Registrar and the Estates List Trial Coordinator, to be brought to my attention. If the parties cannot agree on a draft Order, they may request a Case Conference to settle the form of Order.
VI. COSTS
54The parties are encouraged to confer and settle the issue of costs.
55If the parties are not able to agree on the issue of costs, any party seeking costs may, by April 28, 2026, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, written costs submission of no more than six (6) pages, to supplement the Bill of Costs or Costs Outline already filed on Case Center. Any party against whom costs are sought may, by May 12, 2026, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, responding costs submissions of the same length. Any party claiming costs who seeks to deliver Reply submissions shall do so by May 19, 2026, in submissions of no more than three (3) pages. If no party delivers any written cost submissions by May 19, 2026, I will deem the issue of costs to have been settled
A.A. Sanfilippo J.
Released: April 14, 2026