In a recent Ontario case White v. White, 2023 ONSC 3740, the court was faced with an unusual question. Should a person who 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 stroke, and asked the lawyer to meet with her at the hospital — but passed away before the meeting could take place. The son who 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 document changing or revoking a will where that document 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 production 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 who 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 production 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 without the ordinary procedures attendant to extant litigation. It wrote that the son sought "discovery without asserting a cause of action," potentially "creating a pond that [would be] ripe for fishing expeditions."6 More fundamentally, the court was concerned with the son's request to invade the mother's lawyer-client privilege — particularly in circumstances 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 who is or might be a beneficiary rummage through a deceased person's most confidential material to see if there is something there that might be a basis [for a challenge under section 21.1]?"
Not anticipating significant pushback from the court, the son had made his request during a 15-minute uncontested 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 should be adjourned for more thorough argument based on research — potentially 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 who 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 however absent case law showing 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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