Executive Summary: Key Legal and Evidentiary Issues

• Applicants challenged a 2020 will on grounds of undue influence and testamentary incapacity.

• Court applied the Minimum Evidentiary Threshold (MET) test to assess whether a full will challenge could proceed.

• Medical evidence showed no cognitive decline; Wayne Brown had full testamentary capacity in 2020.

• Allegations of undue influence by Christine Foster were unsupported and contradicted by credible evidence.

• Mr. Ainsworth, the drafting solicitor, provided detailed and credible testimony confirming Wayne’s free will.

• Court found no justification for further disclosure and dismissed the Applicants’ motion.

Background and family dynamics

The Applicants, Roger Orde, Steve Orde, and Shannon Brown, contested the January 24, 2020 will of William Wayne Brown, who passed away on April 19, 2021. They alleged that Wayne lacked capacity and was unduly influenced by Christine Foster, one of the Respondents and a significant beneficiary under the will. Wayne had previously executed a will in November 2019, and the Applicants believed both the 2019 and 2020 wills were procured under suspicious circumstances following the death of Wayne’s wife, Beverley, in 2019. The Respondents included Christine Foster, Gail Sharon Brown (Wayne’s sister), Billie Brown (Wayne’s son), the estate of Kerrie McCrea (Wayne’s stepdaughter), and the Canadian Diabetes Association.

Content of the wills

Wayne’s 2019 will named Roger and Steve as estate trustees and left shares of the estate to Christine, Steve, Roger, and Gail. His children Shannon, Billie, and Kerrie received nothing. This will was drafted by James Jordan, who was Steve’s lawyer. In contrast, the 2020 will named Christine and Shannon as estate trustees and distributed the estate primarily among Christine, Gail, Kerrie, and a charitable organization. Wayne’s sons received nothing. This second will was drafted by an independent lawyer, Gary Ainsworth.

Arguments and motion before the court

The Applicants sought further production of financial, medical, and legal records to support their claim that the 2020 will was invalid. However, the Respondents filed a motion challenging whether the Applicants had met the Minimum Evidentiary Threshold (MET), a legal standard that must be met before a will challenge can proceed under Rule 75.06 of Ontario’s Rules of Civil Procedure. The Applicants had already received some disclosure, including Mr. Ainsworth’s notes and medical reports.

Testamentary capacity

Medical evidence from Dr. Veselskiy, who assessed Wayne in early 2020, showed no decline in cognition. Wayne’s mini-mental state examination score had improved from 2016 to 2020, and the doctor concluded Wayne did not suffer from dementia. Mild cognitive impairment was noted but attributed to medication and aging, not to a level that impaired testamentary capacity. The court accepted this expert assessment, finding Wayne capable when he executed the 2020 will.

Undue influence and role of Christine Foster

The Applicants alleged that Christine Foster manipulated Wayne and isolated him from his children. However, the court found these claims to be speculative and unsupported. Christine had known Wayne and Beverley for decades and provided caregiving support after Beverley’s death. She was transparent about a $20,000 gift Wayne gave her and had no role in the drafting or execution of the will. The court also accepted Mr. Ainsworth’s evidence that Wayne approached him independently, met him alone, and expressed clear intentions to exclude certain family members. Mr. Ainsworth, an experienced estate lawyer and former chair of the Consent and Capacity Board of Ontario, found Wayne to be acting voluntarily and thoughtfully.

Outcome

Justice Casullo found that the Applicants failed to meet the MET. There was no credible evidence of either incapacity or undue influence that would justify further production or a full will challenge. The court dismissed the Applicants’ motion and granted the Respondents’ motion. Costs were reserved, but the judge noted she would decide costs herself if the Applicants ultimately abandoned their challenge.