Issue in the case is whether estate can be put to the burden of expense and delay
In a recent case, the Ontario Superior Court of Justice refused to order the disclosure of records, finding that the applicant failed to meet the required evidentiary threshold for the estate to be subjected to further expense or delay.
In Johnson v. Johnson, 2021 ONSC 6415, the applicant alleged that her mother, who died in August 2020 at age 99, lacked capacity to make her last will in August 2015 and inexplicably disinherited her in the will.
The applicant, who had acted as her late mother’s attorney for property and personal care from 2004 to 2014, served a notice of objection in January and sought relief including an interim preservation order to stop her sister, the executor and a respondent in this case, from dealing with their late mother’s estate.
The Ontario Superior Court of Justice in Pembroke issued a certificate of appointment of estate trustee with a will to the respondent in March. In the present case, the applicant was asking for a disclosure order relating to the estate, including for the medical records, financial records and the notes and files of the deceased’s long-time lawyer, who prepared the last will.
The Superior Court dismissed the present application on the basis that the applicant had failed to meet the minimal evidentiary threshold required for the disclosure order she sought. The court held that the respondent executor satisfactorily addressed the issues the applicant raised and that the estate should not be subjected to further expense or delay because of such issues.
The court said that the evidence showed the reason for the deceased’s decision to draft a new will removing the applicant as a beneficiary — a reason which was rational and understandable and which the applicant knew.
The evidence provided that the applicant, as the deceased’s attorney for property, became the joint owner of several of the deceased’s investment accounts, then asked for the transfer of the accounts to Calgary, without the deceased’s authority. The deceased, upset by the applicant’s handling of her investment accounts, told her long-time lawyer to demand an accounting from the applicant, who failed to provide such. The deceased then replaced the applicant’s role as her attorney and sued the applicant to regain control of her investment accounts.
Next, the court ruled that the deceased had the capacity to make her last will. The deceased stayed sharp and knowledgeable about her finances even after receiving a diagnosis for dementia by April 2015. The respondent executor said that the deceased remained capable and competent to manage her own affairs until late 2018, regardless of her setbacks.
A lawyer, who was hired by the deceased in or about April 2015 to file the application to remove the applicant as joint owner of the investment accounts, said that he had no concerns regarding whether the deceased had capacity or whether the deceased was acting under another person’s influence.
The court said that this lawyer’s evidence did not prove that the deceased had the capacity to make a will four months after that meeting, but it did neutralize the suggestion that the deceased necessarily lacked the capacity to make the will following her dementia diagnosis. The court also found no evidence of undue influence.
