During his lifetime, the deceased chose not to share with his children that he was ill
The Ontario Superior Court of Justice has refused to allow disclosure of the deceased's medical records to his children on the ground that a disclosure would result in a gross intrusion of the deceased's privacy.
In Gilbert v. Girouard, 2023 ONSC 4445, Chris Gilbert and Jennifer Tucker are siblings, and they challenged their father, Philip Gilbert's, wills executed on September 28, 2021. Christopher and Jennifer argued that their father lacked the testamentary capacity to make the wills and that they were the product of their sister, Karen Girouard's, undue influence over him.
The deceased, Philip Gilbert, made several wills over his lifetime. He executed his first will in 1979, leaving his estate to his wife and the residue to his three children. In 1985, the deceased made a second will, naming his brother as estate trustee and his son, Chris, as alternate trustee.
His last known wills were prepared on September 28, 2021. One deals with corporate assets, while the other deals with Philip's personal assets. The wills named Karen as the estate trustee. She is also named as the sole beneficiary of both wills per stirpes. Philip made no provision in the wills for his two other children--Chris and Jennifer.
Chris and Jennifer moved for disclosure of the deceased's medical records from January 1, 2020, to the date of his death, April 1, 2022. The applicants contended that these records are relevant to whether the deceased had testamentary capacity when the wills were signed and provide context to Karen's relationship with the deceased in determining whether he had undue influence over him in making his wills.
The Ontario Superior Court of Justice ultimately dismissed the applicants' motion to produce medical records. The court noted that the deceased was diagnosed with cancer before his death. He disclosed this fact to Karen but not to Jennifer or Chris. The court said the deceased declined to tell two of his children about his cancer diagnosis. In the court's view, this was not an accidental decision. It suggests that he was a man who valued his privacy, even where his children were concerned.
The court said it should be cautious in releasing to the deceased's children the kind of medical information he chose not to share with them during his lifetime because it would be a gross intrusion on his privacy. Additionally, the court was concerned that the disclosure might have negative consequences for the memories the children carry of their father.
Meanwhile, the court recognized that the solicitor's file was comprehensive enough to answer allegations of incapacity. It documents each meeting between the deceased and his solicitor. It described the circumstances surrounding their communication, including the deceased's knowledge of his assets, the rationale for preparing a will, and the instructions the deceased gave. The court emphasized that the solicitor's file is the best testamentary capacity evidence.
The court ultimately found that the production of the deceased's medical records is a fishing expedition that affects the privacy and dignity of the deceased. Accordingly, the court denied the application to produce medical records.
The court found that the deceased's testamentary wishes evolved as his family circumstances changed. For instance, when he separated from his wife and ultimately divorced, he made a new will excluding her.
After carefully reviewing the evidence, the court found that the applicants had not adduced any evidence challenging the deceased's capacity to make the impugned wills. Furthermore, the court found that the documents prepared by the deceased's solicitor demonstrate that the deceased had the capacity to instruct his solicitor about the content of the wills at the time the instructions were given and when the wills were executed.
Accordingly, the court concluded that the applicants failed to meet the threshold that the deceased lacked testamentary capacity.
As to the applicants' argument that the impugned wills are a product of their sibling, Karen's, undue influence over the deceased, the court found that the applicants have established that the deceased was reliant on Karen for his emotional and physical needs, that he made changes in his estate plan, and that he signed powers of attorney at the time he made a new will.
Learn what is a power of attorney in Canada here.
The court found that the applicants have established a minimal evidentiary threshold to call into question the validity of the September 2021 wills if undue influence is established. Accordingly, the court issued an order to determine whether the wills executed on September 28, 2021, were the product of Karen's undue influence over the deceased.
