Meeting The “Minimum Evidentiary Threshold” In Ontario Will Challenges

In Rogers v. Ferretti, 2026 ONSC 2210, the Court confirmed that parties challenging a Will do not need to prove their case at the outset. Instead, they only need to meet a “minimal evidentiary threshold” before being entitled to financial records, medical records, and solicitor files to investigate the validity of the Will. 

The decision provides a detailed roadmap of how courts assess suspicious circumstances, vulnerability and allegations of undue influence in contested estates matters.

The deceased, Patricia Ferretti, died in December 2023 at the age of 95. Patricia had two children: Joseph Ferretti and Diane Rogers. 

Diane predeceased her mother in 2017, leaving behind three children. For approximately ten years, Joseph was estranged from Patricia. 

During that time, Patricia repeatedly executed Wills that still provided Joseph with a significant share of her estate despite the estrangement.

In July 2019, Patricia executed a Will dividing her estate equally between Joseph and Diane’s children. However, only weeks after Joseph re-entered Patricia’s life in August 2019, Patricia began making significant changes to her estate plan.

The evidence before the Court showed that:

• Joseph arranged for Patricia to meet with a new lawyer known to him and his spouse;
• Patricia signed a new Will in September 2019;
• Patricia later granted Joseph power of attorney over her property;
• Patricia transferred her home into joint tenancy with Joseph;
• Joseph became joint holder on various bank accounts;
• Nearly $750,000 was transferred into a joint investment account; and,
• A final 2020 Will removed Diane’s children entirely and left Joseph as sole beneficiary.

After Patricia’s death, Diane’s children challenged the validity of the 2019 and 2020 Wills.

The immediate issue before the Court was not whether the Wills were valid. Instead, the Court had to determine whether the Applicants had presented enough evidence to justify a full Will challenge and to obtain disclosure of medical, financial and solicitor records.

Ontario courts refer to this as the “minimal evidentiary threshold.”

The Court reviewed the leading Ontario authorities, including Neuberger Estate v. York, confirming that a party challenging a Will must present some evidence that, if accepted, could call the Will’s validity into question:

“…an interested person must meet some minimal evidentiary threshold before a court will require that a will be proven in solemn form. Otherwise, the estate could unnecessarily be put to needless expense and litigation to defend a testamentary instrument only because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.  To meet the minimal evidentiary threshold, the party requesting that the testamentary instrument be proved must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded…”

Justice Sanfilippo found several factors sufficient to justify further investigation and disclosure.

The Court noted that Patricia consistently treated both children equally in her estate planning for years, even during the estrangement with Joseph.

The sudden disinheritance of Diane’s children shortly after Joseph re-entered Patricia’s life was viewed as a “remarkable departure” from her longstanding intentions.

The evidence showed Patricia suffered from anxiety, frailty, hoarding issues, hospitalization and increasing dependence on caregivers in the years leading to the impugned Wills.

The Court accepted that these circumstances supported further inquiry into whether Patricia may have been vulnerable to undue influence.

The timeline was also significant.

Only 16 days after reconnecting with his mother following a decade-long estrangement, Joseph arranged for Patricia to meet with a lawyer connected to him and his spouse. Patricia signed the new Will the very same day she first met that lawyer.

The Court considered the rapid sequence of estate planning changes, asset transfers and joint ownership arrangements to be suspicious enough to warrant deeper scrutiny.

Joseph argued that Patricia had rational reasons for disinheriting Diane’s children, including alleged disputes involving financial records and family heirlooms. However, the Court found much of this evidence was hearsay and potentially self-serving.

Justice Sanfilippo also questioned whether the explanation aligned with Patricia’s historical conduct, particularly given that she had never disinherited Joseph despite years of estrangement.

The Court ultimately held that the Applicants met the minimal evidentiary threshold necessary to require the challenged Wills to be proven in solemn form.

As a result, the Court ordered broad production of:

• Solicitor files;
• Medical and healthcare records;
• Banking and financial records;
• Investment documents;
• Tax returns;
• Real estate records.

The Court also permitted examinations of the lawyers involved in preparing the Wills.

This case is a significant reminder that Ontario courts take allegations of undue influence seriously, particularly where there is:

• A vulnerable elderly testator;
• Sudden changes to longstanding estate plans;
• Isolation or dependency;
• Significant inter vivos asset transfers;
• Involvement by beneficiaries in arranging legal advice;
• Rapid revisions to Wills or Powers of Attorney.

Importantly, the decision reinforces that a party challenging a Will does not need to fully prove undue influence at the preliminary stage. The Court only requires enough evidence to justify further investigation and disclosure.

At Pinto Shekib LLP, we act in complex Ontario estate litigation matters, including Will challenges. Our lawyers have obtained similar production orders in cases such as Patell v Patell.

Contact us at 416.901.9984 or info@pintoshekib.ca for a confidential consultation.