Onus Of Proof – Who Has To Prove What

Onus Of Proof – Who Has To Prove What
Date: 27 Oct, 2022| Author: Fred Streiman

For a Will to be valid, some minimal factors need to be present. Most of them are just common sense. These include the basic concept that the Will Maker aka the Testator needs to understand what they are doing and cannot be forced into making a Will.  Formalities under the Succession Law Reform Act also need to be followed.   Mental capacity and undue influence are canvassed in a number of other blogs.

But in the case of a contest between interested parties in a Will, whose responsibility is it to prove that all of the factors have been met?

For a long time the onus rested upon the person propounding the Will. By that we mean those parties seeking to have a Will probated and thusly be certified by the court as being the Will Maker’s Last Will and Testament.

However there has been a cultural change evolving in Ontario over the last few years. That cultural change has been described on more than one occasion by the Ontario Court of Appeal. In 2016 in the case of Neuberger v. York and most recently in the 2022 case of Johnson v. Johnson, the Ontario Court of Appeal has stated not so fast.

If one is relying on rule 75.06 to force a party to have a Will’s validity certified by the court and if one is attempting to attack that lack of validity, it is not enough to simply ask or make bald faced allegations. The objecting party must show some evidence which calls into question the validity of the Will. If one fails to meet that minimal evidentiary threshold or if the party seeking to prove the Will as being valid, successfully answers all the objections, then the attack should be dismissed.  In other words the attack never even gets off the ground.

Simply put, if one is going to attack a Will on any of the usual grounds which are described elsewhere on this website, one needs to have a minimal amount of evidence. What that evidence needs to be varies from case to case.

In the 2022 Johnson decision of the Ontario Court of Appeal referred to above, we had an unhappy daughter of the 94 year old testator who lived for another five years after making her will.   Four months before the mother wrote her 2015 Will, her family physician had diagnosed her as suffering from dementia. In the 2015 Will the mother cut out her daughter despite earlier comments that she wanted to share her estate equally amongst all of her children as she had done in her earlier wills.  At first blush one would think that the minimal amount of fuel for a fire had been provided. Additionally all at that stage that the attacking daughter sought was an order freezing the estate and the release of medical and legal records so that further grounds for the attack and or evidence could be found. One would think a logical and strong argument.  The unhappy daughter attacked.  She not only lost at trial, but appealed her loss.

However in Johnson, the rest of the family were able to show there was a wealth of evidence that the Will Maker knew what she was doing, that she had clear and obvious reasons as to why she had cut out the disgruntled daughter and convince the court that the diagnosis of dementia was not in itself sufficient to bar one from making a Will.

The line has been moved and one needs to come to court with a relatively strong case to be able to shift the burden onto those parties seeking to have a Will certified.

The court was not sympathetic to the unhappy daughter’s argument to the court that it was closing the door to her before she even have a chance to find out what other evidence was out there. She argued that the court was not allowing her to obtain the medical records of her late mother or what her lawyers wrote in their files when the Will was done. The court in essence said sorry no fishing expedition unless you can at least convince us that there are unanswered suspicions.