On October 23rd, 2023, Casey & Moss Partners Laura Cardiff and Cara Zacks were speakers on a panel hosted by the Ontario Bar Association on the subject of meeting the minimal evidentiary threshold in will challenges.
When someone challenges the validity of a will, before the will challenge can proceed before the court, the challenger must prove to the court that there is at least a minimal amount of evidence to support the claims being raised. If the will challenger cannot point to any evidence that, if corroborated, would prove that the deceased executed their will while lacking capacity, under duress, or under undue influence, then the will challenge won’t be allowed to move forward.
The purpose of requiring will challengers to meet this minimal evidentiary threshold is to protect an estate from having to spend time and estate money defending will challenges that don’t have any merit at all.
Laura and Cara spoke to the audience, consisting primarily of other estate litigators, about recent court decisions on the topic. They also provided a series of practical tips for litigators on what to include, and what to leave out of affidavits to make sure clients meet the threshold.