Johnson v Johnson (2022 ONCA 682) (“Johnson”) is a recent decision from Ontario’s Court of Appeal (the “ONCA”) that provides helpful reminders to litigants and their counsel regarding the “minimal evidentiary threshold” required in will challenges before a court will require that a testamentary document be proven in solemn form (i.e. in open court, through a more protracted discovery and litigation process). In Johnson, the ONCA emphasized that, unless it concludes that such a process is necessary in the context of a given dispute, a will challenge may be “cut short” and dismissed relatively early for insufficient evidence on the part of an applicant and/or as a result of the respondent having provided a fulsome response to an applicant’s challenges to a testamentary document. Notably, this can occur well before documentary productions are ordered.

A common practice and strategy in will challenges is for applicants (and other interested parties) to proffer the evidence available to them at the outset of litigation, and then prepare to further build their case and/or undermine their opponents’ case following the parties’ productions of a deceased’s confidential medical, legal, and or financial records (which records are generally produced by way of a court order). Johnson is a reminder that such a strategy is not workable, and such production orders will not be granted, unless a “minimal evidentiary threshold” has been met which convinces a court that the currently available evidentiary record is enough to call a testamentary document into question such that its proof in solemn form becomes required. This will not always be the case and, particularly with more modest estates, courts seem wary of dragging parties into time- and cost-intensive litigation unless it is determined to be necessary and proportionate.


This appeal arose out of an estate dispute among Nancy, Janice, and Hugh, the three children of the late Mabel Johnson (“Mrs. Johnson”), who died on August 23, 2020 leaving a will that she executed on August 12, 2015 (the “2015 will”). In the 2015 will, Mrs. Johnson’s estate of about $457,000 was divided between Janice and Hugh. Nancy was disinherited.

In June 2021, Nancy commenced an application to have the 2015 will proven in solemn form. She claimed that the circumstances surrounding the 2015 will were highly suspicious, and alleged there were reasonable grounds that her mother lacked capacity. Regarding the former ground, she claimed that her disinheritance in the 2015 will was inexplicable and a marked change from Mrs. Johnson’s prior will (wherein all three children were treated equally). To move her application along, Nancy sought the production of medical, financial, and legal records relating to her mother’s affairs. This is often a regular evidence-gathering step in disputes such as this one, but, as Johnson demonstrates, orders for such productions are an exercise of judicial discretion and are not granted as a matter of course.

The Application Judge’s Decision

The application judge, Williams J, dismissed Nancy’s application. Justice Williams applied the framework set out by Gillese JA in Neuberger v York, 2016 ONCA 191 (“Neuberger”) and further outlined in Seepa v Seepa, 2017 ONSC 5368 (“Seepa”) (more on this below) and concluded that Nancy had failed to meet the minimal evidentiary threshold necessary before the court would exercise its discretion to require proof of the 2015 will in solemn form and thus expose Mrs. Johnson’s (relatively modest) estate to great expense and litigation.

Nancy appealed the decision. She submitted that Williams J erred in law by misapplying Neuberger and dismissing her application in the absence of medical, financial, and legal productions that should have been ordered, as well as in the absence of other evidence that should have been called.

The Court of Appeal’s Decision

Legal Framework

The ONCA dismissed the appeal per curiam and, in its analysis, provided further guidance on the Neuberger approach regarding the above-noted “minimal evidentiary threshold” in will challenges. At paras 7 – 8 of its reasons, the ONCA stated as follows:

[7]     This court clarified in Neuberger that “an interested person” does not have an absolute right to require proof of a will in solemn form but that “the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved”: at para. 87. In order to avoid exposing estates to needless expense and litigation, “some minimal evidentiary threshold” must be met “before a court will accede to a request that a testamentary instrument be proved”: at para. 88.

[8]     The correct approach that a court should follow was set out at para. 89 of Neuberger:


[A]n applicant or moving party under rule 75.06 [of the Rules of Civil Procedure] must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved.


At para 39 of Seepa (also cited by the ONCA), Myers J offered further guidance as to the sufficiency of the evidence that an applicant should put forward to meet the minimal evidentiary threshold. He wrote:

[39]    The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiary threshold”. . . . In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in [Hryniak v Mauldin, 2014 SCC 7].


As the above excerpts suggest, when weighing the available evidence and exercising judicial discretion, courts are expected to consider how the goals of “efficiency, affordability, and proportionality” could be realized in the context of a given dispute regarding a particular estate. Practically speaking, this may be suggestive of courts being especially wary of exposing more modest estates to protracted records productions, investigations, and litigation.

Applicants considering Johnson should therefore take pause when commencing a will challenge to ensure that their case is strong without the benefit of the deceased’s more “intimate” records. Those responding to a will challenge should similarly take pause to recognize that, if available, providing fulsome evidence to counter an applicants’ challenges and suspicions could result in substantial time and cost savings for all interested parties. While this seems commonsensical, many parties in will challenges often expect the deceased’s medical/legal/financial records to be produced relatively early in the litigation and make plans to build their case following such productions. Johnson and the cases it discusses are a welcome reminder that such strategies are, in many cases, not in line with the applicable legal and policy framework.

The ONCA’s Analysis

The ONCA found that Williams J followed the correct approach, and that there was no basis to interfere with her dismissal. It observed that Her Honour’s decision depended heavily on her assessment of the evidence and factual findings, to which appellate courts owe considerable deference. It further observed that, in applying Neuberger, Williams J reviewed and engaged in the limited weighing of the parties’ evidence, and was not persuaded that the changes to the 2015 will were inexplicable or that Mrs. Johnson may have lacked capacity.

Regarding the changes to the will, the ONCA observed that Williams J had accepted the respondents’ evidence that Nancy’s own actions had led to a serious and irreparable breach with her mother in 2014, well before the execution of the 2015 will—a breach that had constrained Mrs. Johnson to commence litigation against Nancy.

Regarding capacity, the ONCA observed that Williams J focussed on the key evidence respecting Mrs. Johnson’s capacity. She considered the evidence of all three siblings and the brief letter written by Mrs. Johnson’s doctor, Dr. Baxter, on April 8, 2015, providing a dementia diagnosis. This letter was not a formal capacity assessment, nor did Mrs. Johnson’s doctor indicate she lacked capacity (indeed, he suggested the contrary in the letter). Importantly, the ONCA highlighted that a mere diagnosis of dementia, without more, does not determine the question of capacity. Justice Williams was entitled to reject Nancy’s description of her mother’s abilities, which she found was exaggerated, and instead rely on the evidence of Janice and Hugh that, while Mrs. Johnson’s health was gradually declining, she remained capable and competent until late 2018.

Justice Williams also looked beyond the evidence of the three siblings on the issue of capacity, and preferred evidence proffered by Mrs. Johnson’s former lawyers. Mr. Gervais, Mrs. Johnson’s lawyer who had represented her in the prior litigation against Nancy, deposed that he found her to be “very sharp”, and that he had no concerns when he met with her in May 2015 regarding her capacity to instruct him or her being influenced by third parties. Further, Mrs. Johnson’s long-time lawyer and the drafter of the 2015 will, Mr. Leach, “obviously felt comfortable taking instructions” from her and allowing her to execute the 2015 will in August 2015. Here, the ONCA noted that, without evidence to the contrary, it was reasonable in the circumstances to infer that Mr. Leach would have properly carried out his duties as a solicitor and would not have permitted Mrs. Johnson to execute the 2015 will if he had concerns about capacity or undue influence.

Given the above, the ONCA concluded that it was open to the application judge to find that Nancy’s evidence, even if accepted, was not sufficient to call into question the validity of the 2015 will and that, concurrently, the respondents’ evidence had successfully answered any challenge. The ONCA rejected the submission that Nancy’s application should not have been dismissed without production of the medical, financial, and legal records that she had requested. Indeed, it found that this argument defeated the very practical purpose of the minimal evidentiary threshold prescribed by Neuberger. It also undermined the policy concerns, outlined in Neuberger, that an applicant ought not be permitted to deplete an estate by seeking discoveries or other directions without meeting the minimal evidentiary threshold of “some evidence” that would call into question the will’s validity and that is not successfully answered by the responding parties.


As Myers J outlined at para 35 of Seepa, “[a]t this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits”. This is a pithy summation of the framework applied by the ONCA in Johnson. It is a framework that is perhaps too commonly left by the wayside in litigation where, for instance, interested parties often collectively consent to have the deceased’s confidential records produced. It need not always be this way, and litigants and their counsel—particularly those involved in responding to a will challenge—should consider using Johnson to their advantage in efforts to efficiently put a stop to a dispute at its early stages.

Since contesting a will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. Contact our office for a free consultation.

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.