Discovery process in will challenge litigation

By James Dunphy

Law360 Canada (July 12, 2023, 9:02 AM EDT) --
James Dunphy
James Dunphy
While “discovery” is a term widely used by lawyers and non-lawyers alike to describe the fact-finding stage of will challenge litigation, the term discovery conflates two distinct proceedings — an application and an action. There are important procedural and evidentiary nuances between these two proceedings. Those nuances are not trivial and should not be overlooked.  

While the majority of will challenges are brought by way of application, often routinely and as a matter of course given the language in the Rules of Civil Procedure, 14.05(3)(a) - (c), 75.01 and 75.06, perhaps greater consideration ought to be given to the choice of proceeding given the limitations inherent in the application process. What is a proper question at an examination for discovery is not always a proper question at a cross-examination of a deponent on an application or a motion.

Order giving directions

The order giving directions pursuant to Rule 75.06 is a crucial staging post in will challenge litigation, whether commenced by way of statement of claim or notice of application. It is common and best practice to obtain an order giving directions. Notwithstanding that the language of Rule 75.06 (1) is permissive; i.e. “... may apply for directions, or move for directions in another proceeding …” in practice an order giving directions is almost always necessary to ensure that the parties have the ability to obtain all the relevant evidence. The order giving directions should address, among other discovery related steps, the production of the drafting lawyer’s file, medical records, financial records, waivers of privilege in respect of those documents, and examinations of parties and non-party witnesses, including the drafting lawyer(s). The court may also direct the issues to be tried in the order giving directions which will help frame the issues during examinations for discovery and cross-examinations on affidavits.

Select procedural and evidentiary differences

In an action, the scope of the discovery is defined by the pleadings. Discovery questions must be relevant to the issues as defined by the pleadings. The scope of questioning of a cross-examination of a deponent for an application or motion is narrower. The courts have held that a cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules. The questions on a cross-examination on an affidavit must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.

The witness on an examination for discovery may be questioned about hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge, but also his or her information and belief about the matters in issue. In a cross-examination, the opposite party is entitled to cross-examine on any matter raised in, or put in issue by the deponent in his or her affidavit, even if the matter is irrelevant and immaterial to the motion or application before the court. Where a deponent gives evidence based on information and belief, they may be compelled to make further inquiries and give hearsay evidence.

The evidence from an examination for discovery does not become evidence at trial, unless the examining party decides to use the evidence against the adverse party by reading-in portions of the transcript of the examination, or to impeach the testimony given by the witness at trial if he or she says something inconsistent with their discovery evidence. The examiner at an examination for discovery may therefore ask questions without risk. This is different to the use made of the transcript from a cross-examination on affidavit which may be filed on the hearing and available to the court.

Rule 31.10(1) permits the examination for discovery of any person who there is reason to believe has information relevant to a material issue in the action. However, this is subject to a test, which can be onerous. This test is not applicable to examinations of a witness in an application or on a motion under Rule 39.03, who may be compelled in the same manner as a witness for trial.

Important evidentiary rules

The question of who bears the burden of proof in will-challenge litigation is a crucial consideration during the discovery process. The propounder of a will is aided by a presumption of knowledge and approval, as well as testamentary capacity, where a challenged will was duly executed with the requisite formalities, and where the will was read over to or by a testator who appeared to understand it. However, this presumption is upended when there are suspicious circumstances (1) surrounding the preparation of the will, (2) calling into question the testator’s capacity, or (3) tending to show that the testator’s free will was compromised by coercion or fraud.

The burden of proof with respect to fraud and undue influence remains with those attacking the will. The courts treat fraud and undue influence as affirmative equitable doctrines that must be proved, not presumed, in the testamentary context. As such, the challengers bear the burden of proof.

Section 13 of the Ontario Evidence Act is an important evidentiary rule for both sides of the estate dispute to consider during the discovery process. Section 13 prioritizes corroboration. It states that a party cannot obtain a judgment in an estate dispute based upon a party’s own evidence, unless that evidence is corroborated by some other material evidence. The rationale behind this rule is to ensure that a court “always ha[s] present in its mind the danger of relying too implicitly upon the evidence of the living in establishing a claim against the dead” (Bayley v. Trusts and Guarantee Co., [1930] O.J. No. 40).

As set out above, examinations, whether they are examinations for discovery or cross-examinations on affidavits, are an extremely important tool for obtaining relevant evidence, eliciting helpful admissions and discrediting unfavourable allegations. That is why examinations can often make or break cases. In order to conduct an effective examination, preparation is key. The examining lawyer must have a thorough command of the facts and also the law that will be applied to the facts on the hearing of the application or at trial. Similarly, witnesses must be properly prepared to answer questions and must know what to expect. There is a lot riding on the examination.

A lunch and learn seminar that discusses the discovery process in will challenges, hosted by Wagner Sidlofsky LLP, is scheduled to take place on July 15, 2023, starting at 12 p.m. Whether you are an experienced estate litigator or a novice, this free Zoom seminar is worthwhile for counsel to attend. For more information and to register please access the following LINK.

James Dunphy is a member of Wagner Sidlofsky LLP’s estate and commercial litigation groups.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Photo credit / Yutthana Gaetgeaw ISTOCKPHOTO.COM

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at or call 437-828-6772.

LexisNexis® Research Solutions