Law Times

Law Times • February 26, 2018 Page 11 www.lawtimesnews.com putting up roadblocks for coun- sel," she says. "They have been granted on consent with good reason, and may continue to be, but I think it is important to focus the liti- gation for the benefit of the par- ties." Silvi Seepa, the testator in the case, died at the age of 92 in 2015, five years after signing a will that left the residue of her estate to her younger son, Eric, who had looked after her since the death of her husband in 2011. The will made no provision for her older son, Alan, and was accompanied by a letter from the drafting lawyer explaining the reasons for the allocation. "You told me that your son, Alan would not come to visit you unless it was a birthday or a holiday or unless he wanted something from you, especially money," the letter reads. Alan mounted a challenge, alleging his mother was inca- pable at the time the will was signed, and that his brother had unduly inf luenced her. According to Myers' deci- sion, Alan also wants the court to undo the transactions by which Eric had transferred the mother's assets, including the proceeds from the sale of her house, into joint tenancy with himself. In the motion for direc- tions brought before Myers, the older brother sought access to his mother's medical and legal records in order to boost his claims. The judge declined to sign the consent order on the par- ties' first appearance before him in May 2017, requiring them to come back and argue the merits of the issue. Relying on the 2016 Court of Appeal decision in Neuber- ger v. York, Myers ruled that in order to be granted a motion for directions under Rule 75.06 of Ontario's Rules of Civil Pro- cedure, will challengers must "adduce, or point to, some evi- dence which, if accepted, would call into question" its validity. Even then, motions should not be granted unless the will's proponent fails to successfully answer that evidence, the judge added. Following arguments, Myers did eventually grant Alan See- pa's motion, despite noting in his decision that he was minded either to dismiss it or to devise a condensed discovery process. However, he was swayed by the younger brother's consent, as well as an arrangement the pair had come to whereby the elder brother would pay the cost of any investigative steps and re- cord production. "The court should be very reluctant to consign estates and beneficiaries to intrusive, ex- pansive, expensive, slow, stan- dard form fishing expeditions that do not seem to be planned to achieve the goals of civil jus- tice for the parties," Myers con- cluded. "But processes that show some thought to customize a process to the evidence so as to promote efficiency, afford- ability, and especially, propor- tionality, with use of a scalpel rather than a mallet, use of sum- mary proceedings where pos- sible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the pro- cess itself, are to be greatly en- couraged." "I know some litigators say it's going to mean more work and expense for challengers in the early stages, but I think it's a fair decision and instructive for both sides," Manthorpe says. Toronto lawyer Heather Douglas says it's still too early to tell whether the culture shift Myers requested will come to fruition. "It puts pressure on counsel to narrow down their requests, but I think some will always be worried about missing some- thing in a document that wasn't requested," she says. "I'm interested to see how it develops, because I do think we have to think creatively about how to decrease delay in our cases." "It's probably going to de- pend on the school of thought of individual judges and how ac- tive or passive they are prepared to be. I hope more will take con- trol," Douglas adds. In the meantime, Fichten- baum says lawyers can do their bit by tailoring and focusing orders for direction according to the specific circumstances of the will challenge at issue. "That will provide an oppor- tunity for the person propound- ing the will to answer the allega- tions earlier in the process," she says. "I think the majority of coun- sel have been guilty of attending before court, seeking and gener- ally obtaining orders on consent calling for the disclosure of all the deceased's medical and fi- nancial records when the allega- tions don't even touch on those aspects. Or if they do, there's little or no basis for them to do so. "Hopefully, those one-size- fits-all orders will become a thing of the past," Fichtenbaum adds. LT Continued from page 10 FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. Unparalleled expertise from our award-winning national team of experts CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ✔ More than 2,000 medical malpractice, personal injury and class action cases. ✔ More than 300 lawyer clients assisted. ✔ Direct access to hundreds of specialists from all areas of healthcare expertise. ✔ A top provider of cost of care reports for your most catastrophically injured clients. Since 2001, we've become a leader in Expert Witness Services in Canada. ntitled-4 1 2017-10-24 2:41 PM Ruling may mean more work for challengers Alexandra Manthorpe says a recent Ontario Superior Court ruling is 'a shot across the bow for estate litigators.' Every time you refer a client to our law firm, you are putting your reputation on the line. DARCY MERKUR | SLOAN MANDEL | DEANNA GILBERT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-3 1 2018-02-20 9:38 AM

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