Today, the Supreme Court of Canada is hearing an estates case that seeks to balance the "open court" principle with the right of a deceased person, and their beneficiaries, to privacy. The appeal takes place in the context of the highly publicized case of Barry and Honey Sherman, a billionaire couple found murdered in their Toronto home in December of 2017. Although the Estate matter itself is not contentious, the murders, which remain unsolved, have attracted significant attention.
Probate of Wills — A Public Process
Ordinarily, when wills are submitted to probate, their contents are made public. Anyone can search the Court Registry file by paying a fee, and get a copy of a person's will, information about their assets and liabilities on death, and particulars of the beneficiaries. Not all wills are required to be submitted to probate, however, and many people choose to arrange their affairs so that probate is not required, avoiding the fees, and publicity, that comes with the probate process.
Sealing the Sherman Estate Files
In the Sherman Estate case, the Estate Trustees applied for probate, but sought that the estate files be sealed. The judge summarized the background as follows:
 On December 15, 2017, Mr. Barry Sherman and Mrs. Honey Sherman were found brutally murdered in their Toronto home. The celebrity and wealth of the victims and the circumstances of their death generated intense publicity. Unfounded rumours swirled and were given a wide audience. On January 26, 2018, Toronto Police Service put an end to many of the rumours when they announced that they were investigating the deaths of both spouses as a targeted double homicide.
 As of the present time, little more is known. The motive behind the murders remains a mystery. The identity of the murderer or murderers remains unknown. In the absence of more information about motive and the identity of the murderer(s) the risk to the survivors cannot accurately be estimated. While the risk cannot accurately be estimated, I have little difficulty in concluding that – at this preliminary stage at least – the degree of mystery that persists regarding both the perpetrator and the motive raises a realistic prospect of continuing risk to those who may inherit possession or control of some or all of the assets of the victims.
The judge sealed certain documents relating to the Estate files. In response, the Toronto Star and a reporter, Kevin Donovan, applied to terminate or vary the sealing order.
Balancing the Interests — Differing Judicial Opinions
As the judge noted in the first paragraph of the decision, the case required the balancing of the "very strong public policy in favour of open courts against the interest of protecting the dignity and privacy of the victims of crime and ensuring the safety of their survivors". In 2018, the judge found that the balance weighed in favour of continuing the sealing orders:
 I am persuaded by the [Estate Trustees'] reasoning when it comes to weighing of the interests that are at stake. Ordering confidentiality over the estate files removes little from the public domain that is not already "out there". However, the additional details that are not already out there relate to matters where there is no reason to believe that there is a legitimate public interest. The full circle of persons connected to this tragedy – their names and addresses and their precise relationship to the deceased – are not generally known to the public. The specific security and privacy concerns expressed by the respondents are reasonable and carry a greater weight in the circumstances of this case than the more general if presumptively weighty concerns favouring disclosure advanced by the applicants.1
In 2019, however, the Ontario Court of Appeal disagreed, noting that the evidence relied on in seeking a sealing order must justify a finding of real risk to the personal safety of individuals or an identifiable group of individuals.
Here, the Estate Trustees had relied on a single 13-paragraph affidavit that contained "conclusory assertions rather than statements of fact". The Court held that there was therefore no evidence that could warrant a finding that disclosure of the content of the Estate files posed a real risk to anyone's personal safety.
In addition, the judge had reasoned that because the identity of the murders was unknown and their motive, if any, was unknown, it followed that anyone with an interest in receiving or administering the estate assets was under a reasonable apprehension of harm. Again, the Court of Appeal disagreed:
 Nothing in the material filed on the motion to seal the files permits any informed assessment of what motive, if any, there appeared to be for the murders. Nor was there any evidence that would allow the motion judge to infer that the motive was unknown. There was no suggestion in the material that the affiant knew anything about the state of the police investigation or any other investigation that may be underway in respect of the murders.2
In the result, the Court set the sealing orders aside. The Estate Trustees obtained leave to appear before the Supreme Court of Canada.
Issues at the Supreme Court
On October 6, 2020, the Supreme Court of Canada will hear arguments regarding whether the sealing order is necessary to protect the privacy and physical safety of the Estate Trustees and beneficiaries of the Shermans.
In doing so, the Court will need to consider the Estate Trustees' argument, "While the media and the public may be curious about the private testamentary affairs of the Shermans given their wealth and the circumstances of their death, they have no proper interest in the [Estate files]".3 The Court will also need to address Mr. Donovan's position that, "[The] principle of openness, constitutionally protected, is foundational to our democracy and critical to the public's confidence in the administration of justice. Donovan and the Star, as members of the media, were exercising their public interest role as surrogates of the public."4 He notes that the murders represent an offence to the community, and also engage broader scrutiny of the justice system, including actions taken by police and the regulation and taxation of large transfers of wealth".
The facts of the Sherman Estates case are tragic and, hopefully, unique. However, the Court's decision is likely to have implications on sealing orders in all areas of law. The Court will involve engage in an assessment of the public interest in openness, and will consider when openness must yield to the legitimate privacy and safety interests of others. The Court's decision is also likely to be of particular interest to estate planning lawyers and those looking to update their estate plans to try to shield themselves, and their loved ones, from unwanted attention.
For assistance with your estate matter, please contact a representative of Clark Wilson LLP's Estate & Trusts Practice Group.
Originally published by Clark Wilson, October 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.