A recent Saskatchewan Court of King’s Bench decision answers when the executor of an estate, or any third party possessing records of the testator, may be compelled to produce documents to the will challenger in a will challenge brought under Rule 16-46 of The King’s Bench Rules [Rules].
In Stradeski v Kowalyshyn, 2023 SKKB 177Opens in new window [Kowalyshyn], the Honourable Mr. Justice D.H. Layh (the “Chambers Judge”) held that a will challenger may get production of documents from the estate or any third party only if the challenger raises unmet suspicion at the application stage of the will challenge and the Court orders a trial of the will. A challenger may no longer compel production from the estate or any third party to help it locate evidence of suspicion before the first stage of the will challenge. As a result, estates are insulated from the costs associated with defending sweeping production applications unless a trial of the will is ordered.
Background
The testator made a will naming his neighbours (a husband and wife that he had known for many years and who had cared for him in the last years of his life) as the executors and sole beneficiaries of his estate (together, the “executors”). The testator separately completed an inter vivos transfer of his farmland to the executors, concurrently with making his will. The testator’s estranged sister was his only living relative. The testator did not get along with her in his lifetime. He did not name his sister in his will. During his hospitalization, the testator told his medical team and, separately, the executors that he did not want his sister to know about his medical condition or to benefit from his estate.
The testator’s long-time accountant assisted him with making his will and completing the inter vivos transfer of farmland to the executors. The testator died suddenly and unexpectedly the day after making his will and completing the transfer of his land.
The testator’s sister (the “challenger”) applied under Rule 16-46 of the Rules to challenge the will on the bases of incapacity and undue influence.
The challenger also applied for orders for the production of all medical records of the testator in the possession of the executors and the last four years of medical records of the testator in the possession of the Saskatchewan Health Authority (“SHA”).
Positions of the Parties
The challenger asserted that she should have her production orders before the Court adjudicated her will challenge application. The challenger hoped to look for evidence of suspicion in the medical records to support her will challenge.
The estate took the position that the challenger should have to satisfy her onus and compel a trial of the will before she might obtain any rights to production from the executors or SHA.
SHA took no position in the application.
Decision
The Saskatchewan Courts had never answered the question of whether a will challenger may compel an estate or a third party to produce documents before the challenger compels a trial of the will by satisfying the test under Rule 16-46 of the Rules.
The Chambers Judge answered the question by dismissing the challenger’s application for production. The Chambers Judge held that the challenger could not obtain any orders for production of the testator’s medical records from the estate or SHA unless or until the Court ordered a trial of the will by adjudicating the first stage of the challenger’s will challenge application under Rule 16-46. The Chambers Judge’s reasons are illuminating as to the purpose of the two-step will challenge procedure and the reasons why premature production orders are inconsistent with the two-step procedure.
A. Production of records from the estate’s executors
The Chambers Judge first considered whether to order the executors to produce to the challenger all of the testator’s medical records in their possession.
The Chambers Judge considered a line of authority in Saskatchewan, reaching back to the Court’s decision in Dieno Estate v Dieno Estate (1996), 147 Sask R 14 (CanLII) (QB). The Chambers Judge also considered the similar will challenge procedure in Ontario.
The Chambers Judge held that a will challenger’s rights of discovery are confined by the two-step process for challenging the will. The purpose of the two-step procedure in a will challenge is to determine whether the challenger should be able to challenge the will’s validity in a trial. The challenger must satisfy the Court at the application stage that there are triable issues in relation to the will based on the challenger’s evidence. If the challenger satisfies its onus, the Court will order a trial of the will. If a trial is ordered, the challenger will obtain rights of discovery from the estate.
The Chambers Judge firmed up his analysis by noting that medical records give rise to a special privacy interest that should not be lightly disturbed. The testator’s ongoing privacy interest in his or her medical records (an interest that survives the testator’s death) means that production from the estate should not be granted unless or until the challenger presents some evidence to support the need for a trial of the will to justify invading the testator’s ongoing privacy interest.
The executors were not ordered to produce medical records of the testator in their possession to the challenger.
B. Production of records from SHA
The Chambers Judge then considered whether the challenger could obtain production of the same medical records from SHA.
The challenger applied for production of the testator’s medical records from SHA under Rule 5-15 of the Rules, which is the third party production rule.
The Chambers Judge noted that Rule 5-15 states that one of the conditions for ordering production of records from a third party is that the third party might be required to produce the records at trial. The Chambers Judge found it was implicit in the rule that a trial must be imminent for any third party production to be granted. He noted that there was no imminent trial because the Court had not determined whether there would be any trial of the will.
The Chambers Judge did not order SHA to produce the medical records to the challenger, and dismissed the challenger’s application.
C. Conclusion
The Chambers Judge concluded that the challenger’s attempts to gain production from the executors or SHA ignored the well-established procedure for proving a will in solemn form. The Chambers Judge explained:
The courts have struck a balance between the interests of an unhappy disinherited person who wishes to explore the possibility of a trial to challenge the validity of a will and the interests of the executors and beneficiaries of an estate to conclude the administration and distribution of the estate. That balance has been set by the two-step proceedings, which does not include ordered production of documents from a third party.
Commentary
Kowalyshyn is the first decision in Saskatchewan to address whether a challenger may compel the production of records related to the testator from the estate or third parties to support a will challenge. The answer is no.
Following Kowalyshyn, a challenger may obtain production of the testator’s records from the estate’s executors or third parties only if the challenger satisfies its onus and compels a trial of the will. This approach balances the interest of disappointed beneficiaries to be able to mount meritorious will challenges with the interest of estates to guard themselves against the cost and inconvenience of responding to production orders bootstrapped on speculative and unmoored will challenges. It also respects the testator’s ongoing privacy interest in his or her medical or other private records, which should not be lightly disturbed.
McDougall Gauley acted as legal counsel for the executors in this application.
McDougall Gauley’s Estate Litigation team has experience acting for estates or prospective will challengers, including dealing with production issues in the context of will challenges. If you are an interested person concerned about the validity of a will, or the executor or administrator of an estate responding to an application to challenge a will, please consult one of our lawyers.
