High Standard Upheld in Will Validity Challenge

Back in 1851, a decision in Russel v. Jackson reasoned that when the validity of a Will is challenged, the solicitor’s file should be disclosed in certain circumstances to provide insight into the views and intentions of the testator, or the objects and purposes for which dispositions have been made in the Will.

Fast forward to 2015:  an interlocutory application in the case of Brown v. Terins (2015) BCSC 775. 

The deceased, John Terins, left his entire estate to his two daughters and also appointed them as executrices of his estate. The Will was silent as to his reasons for completely disinheriting his common-law spouse, and a look into the deceased’s thinking – by ordering the opening of the solicitor’s file – seemed like a good place to start in achieving an accurate outcome when the spouse challenged the Will.

But, in Gordon v. Gilroy the British Columbia Supreme Court stated quite well the difficulties in making these judicial decisions, quite well:

“I suspect that it would surprise and distress a client if told by the solicitor whom that person retained to give advice and to prepare a will concerning the disposition or lack of disposition to the client's children that after his or her death the solicitor would be obliged to disclose the discussions which the client had in confidence with the solicitor in the event the children were dissatisfied with the will and chose to commence an action under the Wills Variation Act.”

In the end, the court did not see a sufficient basis on which to distinguish the Terins case from Gordon v. Gilroy. The court felt that the purpose for seeking disclosure of the confidential communications in the Terins case was not for determining the testator's true intentions but rather to defeat those intentions.

The court further opined that the plaintiff—the financially scorned spouse—was trying to search for a basis to undermine the deceased's reasons, by questioning whether his lawyer had advised him properly in his last will and testament.

Furthermore, while the reasons for the distribution were not stated in the Will, there was evidence that the reasons stemmed from, among other things, a cohabitation agreement that was signed a year after the couple began living together.

In the end, the Supreme Court of British Columbia dismissed the application and refused to allow the disclosure of the solicitor’s file.  In doing so, the court upheld the high standard required in order to compel disclosure of a solicitor’s Will file and this should be welcomed by all.

Counsel for the defendant had stressed that the floodgates would be opened for numerous similar applications if this application had been decided otherwise. This is a precedent that may be relied on many more times in the future, as recent changes to testamentary trust rules differentiate between the beneficiaries who must pay the taxes in the estate vs. those who are the recipients of the tax-paid assets from a spousal trust.

For more information, attend the Distinguished Advisor Workshops held June 17 in Winnipeg, June 18 in Calgary, June 19 in Vancouver (where the author of this article, Greer Jacks will be speaking), and June 22 in Toronto.  Registrations will be accepted up to the day of the event, space permitting.