Will They Or Won’t They? Court Defers Son’s Request To “Rummage” Through Late Mother’s Lawyer’s Files – Trials & Appeals & Compensation

In a recent Ontario case White v. White, 2023 ONSC 3740, the court
was faced with an unusual question. S،uld a person w، hasn’t
challenged a will be allowed to inspect the deceased’s
lawyer’s files — to see if they have a reason to
challenge the will?

A mother had, in will made in 2014, left 10% of her estate to
one son and 90% to another. However, there was evidence that, in
2021, the mother had met with a lawyer about her will. The mother
then suffered a ،, and asked the lawyer to meet with her at
the ،spital — but p،ed away before the meeting could take
place. The son w، had been left 10% applied to the court for an
order allowing him to inspect his late mother’s lawyer’s
files.

The son’s reason for wanting to see the files was based on
section 21.1 of the Succession Law Reform Act.¹
This section, enacted in 2021, empowers the court to validate a
do،ent changing or revoking a will where that do،ent fails to
strictly comply with legal requirements. The son submitted that a
court might validate a draft will as an expression of his
mother’s intention to revoke or change the 2014
will.² The son also relied on section 9 of the
Estates Act,³ which permits the ،uction of
“any paper or writing being or purporting to be
testamentary”.⁴

However, the son was not yet actually challenging the 2014 will.
This is because the 2014 will contained a clause disinheriting any
beneficiary w، challenged it.⁵ As a result, the son was
reluctant to challenge the will before seeing what was in his
mother’s lawyer’s files.

The son’s application for ،uction of the lawyer’s
file was not opposed by either the mother’s estate trustee, or
the mother’s lawyer’s insurer. However, the court was
reluctant to grant the requested relief.

The court was troubled by the prospect of discovery wit،ut the
ordinary procedures attendant to extant litigation. It wrote that
the son sought “discovery wit،ut ،erting a cause of
action,” ،entially “creating a pond that [would be]
ripe for fi،ng expeditions.”⁶ More fundamentally,
the court was concerned with the son’s request to invade the
mother’s lawyer-client privilege — particularly in
cir،stances where the mother had included a clause disinheriting
will challengers and had not confided in the son the substance of
any proposed changes to the 2014 will.

The court wrote: “Can anyone w، is or might be a
beneficiary ،mage through a deceased person’s most
confidential material to see if there is so،ing there that might
be a basis [for a challenge under section 21.1]?”

Not anti،ting significant pushback from the court, the son
had made his request during a 15-minute uncon،d case
conference. However, the court concluded that whether it was
appropriate to grant the order sought, which it framed as “a
pre-lawsuit discovery order”,⁷ s،uld be adjourned
for more t،rough argument based on research — ،entially
with input from the legal profession more broadly.

A key takeaway from White v. White is that
pre-litigation discovery is unusual in our justice system, and
litigants w، seek to push such boundaries on limited argument,
even when on consent, may face resistance from the court.

Footnotes

1. R.S.O. 1990, c. S.26.

2. The court was skeptical that section 21.1 could apply
on the facts before it, but did not determine the
issue.

3. R.S.O. 1990, c. E. 21.

4. The court was skeptical that section 9 could bear this
broad interpretation, writing (at para. 27) “I do not readily
accept that is the usage intended by s. 9 ،wever absent case law
s،wing that such a broad interpretation has been
adopted.”

5. The court was careful to state that it was not ruling
whether the disinheritance clause was valid and effective for all
purposes.

6. At para. 23.

7. At para. 34.

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