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Changes Ahead Road Sign

A recent decision of the Ontario Superior Court of Justice may signal a change in estate litigation culture, specifically in how the courts are likely to deal with a will challenge.

In the case of Seepa v. Seepa, 2017 ONSC 5368, Justice Myers reviewed the common practice in estate litigation cases involving a will challenge. A person has been left out of a will or has received less than he thought he would. On that basis alone, he alleges that the deceased person was under undue influence at the time the will was made and therefore it should be set aside.

The parties involved in this type of dispute will often ask the court to make a consent Order which requires time consuming and costly collection of documents and information relating to the dispute. The concern raised by Justice Myers in Seepa is that the person left out of the will would then be able to go on a “fishing expedition” for information to support his claim, solely because he is unhappy at being left out of the will.

Justice Myers suggested that this typical approach may no longer be appropriate and that it may be time for a culture shift. Instead of simply asking for standard form orders that tend to increase costs and delays, Justice Myers indicated that there ought to be a “minimal evidentiary threshold” for the person to meet before they receive the court’s assistance. A person needs to show why they believe there was undue influence.

If the Seepa decision is indeed an indication of a culture shift in estate matters before the Ontario courts, disgruntled relatives will want to seriously consider whether they have a reasonable basis for challenging a will before asking the court for assistance.

For more information regarding the issues outlined above, please feel free to contact me directly.

Cale Harrison

Associate – Personal Injury and Litigation Group

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.

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