Ontario Court Provides Guidance on Documentary Disclosure

In a recent decision, the Honourable Justice Myers held that the typical Orders Giving Directions that estate litigation lawyers seek to allow the parties to produce documents are ”lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more.”

What Happened?

The background facts in the case  were as follows:

• The deceased, Silvi Seepa died on October 17, 2015 at age 92. She signed her most recent will on November 17, 2011 when she was 87 years old. The parties are the two children of the deceased. Each has children of his own.
• Mrs. Seepa left her residuary estate to the respondent – her younger son Eric Seepa. She left nothing to the applicant – her eldest son Alan Seepa, or any of her grandchildren. She also signed Powers of Attorney in favour of Eric.
• Throughout their childhood, the parties lived with their parents. Alan moved out of his parents’ home in 1979 to rent his own apartment. Eric moved out four years later.
•  After the parties’ father passed away in 2001, Eric took care of their mother. Eric carried out all of Mrs. Seepa’s household chores and continued to be her caregiver for the next 10 to 12 years.
• By contrast, Alan says that after he moved out, he visited his mother at least twice a year – on Christmas and her birthday. He says that he spoke to her at least once a month.
• Alan says that he was not able to visit more often because he has health issues including spinal arthritis that cause him to suffer constant pain and restrict his mobility. He says that his mother was forgiving of his problems as she had back problems of her own.
• In or around 2011, while Eric was his mother’s primary caregiver, he transferred most of her assets into joint tenancy with himself. Those assets, which included Mrs. Seepa’s bank accounts, passed to Eric by operation of law on Mrs. Seepa’s death. There is little, if anything, left to form her estate.

Alan challenged his mother’s Will based on undue influence and lack of testamentary capacity. Alan asked the Court to allow him to access his mother’s legal and medical records. Eric consented to the Order.

Justice Myers made an important comment to the estate litigation bar: don’t forget proportionality and whether you have provided the minimal threshold of evidence to prove to the Court that your request for documentary disclosure is reasonable:

“..processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, use of summary proceedings where possible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.

For advice and guidance on estate litigation matters, contact Eisen Law.  Our knowledgeable estate lawyers will provide you with the peace of mind that comes with knowing the best possible resolution of your dispute was reached. Call us at 416-591-9997 for a free initial consultation or contact us online.