Earlier this year, the Ontario Superior Court of Justice released its decision in Seepa v. Seepa (2017 ONSC 5368) and its impact on estate litigation is being felt.
The facts of the case are relatively straightforward: In her last Will, written when she was 87 years old, Silvi Seepa left the residue of her estate to one son, Eric Seepa, and nothing to her other son, Alan Seepa, or her grandchildren. Not surprisingly, Alan didn’t like this and raised issues of incapacity, undue influence and breach of fiduciary duty by his brother. He also asked the court to set aside transactions in which Mrs. Seepa put property into joint tenancy with Eric (which meant that those assets went to Eric directly, by right of survivorship, and passed outside of her Will).
Evidence was submitted that Eric greatly assisted his mother and took care of her after her husband (his and Alan’s father) passed away in 2001, and that he carried out all of her household chores for over a decade. In contrast, Alan himself admitted that he only visited his mother about twice a year – on Christmas and her birthday – and that he spoke with her by telephone about once a month. However, he stated that he had back issues which made visiting more difficult and that “his mother was forgiving of his problems as she had back problems of her own.”
The resolution (the parties reached an agreement and the judge consented to it) is actually relatively unimportant, because what sets Seepa v. Seepa apart from many other inter-family disputes is what Justice Myers said with respect to bringing estate litigation claims in the first place. Citing the influential 2016 Ontario Court of Appeal decision Neuberger v. York (2016 ONCA 191), Justice Myers wrote:
In the estates court in Toronto motions for directions are routinely brought on consent in will challenges. The fact pattern in these cases is almost always the same. The applicant has been cut out of a will or has been gifted less than he or she believes was due. Of course, the beneficiary who obtains “more” is usually the one who cared for, or at least spent comparatively more time with the deceased. This lets the disgruntled applicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue influence to induce the deceased to make an unfair distribution of the estate.
The standard form orders for directions routinely granted on consent in these cases consign the parties to lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more. The orders are all or nothing. There are few orders that seem to be tailored to the needs of the individual case. Ongoing case management is generally not provided for.
One wonders whether, in the absence of evidence supporting the causes of action and a need for such extensive processes, there is good reason to subject not just the parties but all of the beneficiaries in these cases to the cost, delay, and distress of lengthy proceedings. The disputes delay distribution of bequests to all of the beneficiaries while a disgruntled relative conducts a fishing expedition and often a deep dive through the deceased’s privileged legal files and most private, personal medical records.
Is it time for a culture shift?
On May 26, 2017, I declined to sign a consent order for directions in chambers in this matter and required the issues to be argued. In particular, I held that if the parties want to obtain an order of the court, “there must be some evidentiary basis to meet an applicable legal test.”
…The Court of Appeal decided Neuberger two years into the culture shift heralded by Hryniak. The appellate courts require this court to always be mindful of the goals of the civil justice system so as to implement the law to achieve fair and just outcomes through processes that are efficient, affordable, and especially proportional in light of the facts and circumstances of each case. In my view, the practice under Rule 75.06(3) serves the interests of the parties well when directions are made on a bespoke basis to fit the measurements of the case. Judicial oversight through case conferences and case management techniques are available under Rules 75.06(3)(g) and 50.13 among others. The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties. But processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, use of summary proceedings where possible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.
What does all this mean? Basically, unless you’re going to bring some actual evidence of undue influence (or whatever it is you are alleging) from the beginning, your claim may not be allowed to proceed.
While this may prevent some frivolous claims from being commenced – a worthy goal – many estate litigators have openly wondered whether or not this will just increase the costs of estate litigation overall, particularly in the initial stages, as even possibly legitimate claims will likely now face a lot more procedural steps. Will there be a “chilling effect” in Will challenges? We’ll have to wait and see!