Gow Estate (Re), 2021 ABQB 305

Court of Queen’s Bench of Alberta Citation: Gow Estate (Re), 2021 ABQB 305 Date: 20210419 Docket: ES14 05515 Registry: St. Paul Court File Number ES14 05515 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre St.

Paul Estate Name George Logan Gow Applicants Frances Neill and Logan Gow Respondents Personal Representatives Beneficiaries (Residuary) Beneficiaries (Non-residuary) Helen Millar and Sheryl Gow Helen Millar and Sheryl Gow Helen Millar and Sheryl Gow Frances Neill, Logan Gow, Jennifer Dormady, Melissa Ruud, Garrett Gow, Cameo Gow, Tyler Millar, Christopher Neill, Morgan Millan, Brielle Dormandy, Hunter Dormandy, Hayden Boyda _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S.

Feth _______________________________________________________ [ 1 ] The Applicants, Frances Neill and Logan Gow, are challenging the will of their late father, George Logan Gow. They ask this Court for advice and directions to determine whether two adverse parties can be compelled to attend questioning at this stage of the proceedings and to produce records attendant to that questioning. [ 2 ] The Applicants have an outstanding application to set aside an informal grant of probate and to direct a trial to formally prove the will (the “Trial Application”).

They allege that their father either lacked testamentary capacity when the will was executed or that undue influence was exercised over him by other family members.

[ 3 ] Helen Miller and Sheryl Gow are the deceased’s other children and the personal representatives of his estate (the “Personal Representatives”). They reject the incapacity and undue influence allegations and oppose the application for a trial to prove the will in solemn form. [ 4 ] The Trial Application is scheduled to be heard in special chambers. The Personal Representatives have cross-applied to summarily dismiss that application. [ 5 ] In support of the Trial Application and in opposition to the

summary dismissal application, the Applicants want to compel the Personal Representatives to attend questioning and to produce certain records that are potentially relevant to the issues in those applications. As the Personal Representatives have not filed affidavits, the Applicants rely on Rule 6.8 of the Alberta Rules of Court , Alta Reg 124/2010 (the “ Civil Procedure Rules ”) to compel the attendances. The Personal Representatives contend that Rule 6.8 is inapplicable to these circumstances.

Background [ 6 ] An informal grant of probate issued on May 22, 2020 for the deceased’s last will. [ 7 ] On application by a person interested in the estate, the Court may set aside an informal grant of probate and require formal proof of a will: Rule 75(1) (

b) of the Surrogate Rules , Alta Reg 130/95 (“ Surrogate Rules ”). [ 8 ] In objecting to the grant of probate, the Applicants filed their Trial Application supported by an affidavit from Frances Neill. The Personal Representatives’ lawyer questioned Ms. Neill on her Affidavit. [ 9 ] The Personal Representatives then filed a cross-application requesting

summary dismissal of the Trial Application relying only on Ms. Neill’s Affidavit and the questioning on Affidavit. Their position is that the Applicants cannot meet the evidentiary burden necessary to justify a hearing into the formal proof of the will. [ 10 ] Counsel for the Applicants served the Personal Representatives with Notices of Appointment for Questioning, which included a demand that the Personal Representatives produce the following records: a. Solicitor files pertaining to the deceased’s estate planning; b.

The deceased’s medical records, including a copy of a certain physician’s file, hospital records, medical exams and reports; c. Documents relating to the deceased renewing his driver’s licence; d. The deceased’s previous wills; e. Other estate planning records and documents pertaining to the deceased’s farming corporation, including any valuations of the corporation and the minute book; and f.

Documents relating to a power of attorney for the deceased, including any financial dealings of his property completed under a power of attorney. [ 11 ] In objecting to questioning and to the production of records at this stage of the proceedings, the Personal Representatives submit that the Surrogate Rules govern the Trial Application and do not permit pre-application discovery.

Until the Applicants have satisfied the Court that a hearing into the formal proof of the will is warranted, the privacy interests of the deceased must be respected, including those protecting privileged legal communications and confidential health information, and the estate should not be subjected to the delay and expense occasioned by discovery. [ 12 ] The Applicants submit that questioning under Rule 6.8 is compatible with the Surrogate Rules and supports the Court’s truth- seeking function.

As the Applicants have an evidentiary burden imposed on them when seeking a trial to formally prove the will, questioning is permissible in trying to discharge that obligation. The Procedural Rules

a) Questioning a witness for a court application [ 13 ] Rule 6.8 of the Civil Procedure Rules permits questioning to assist with an application before the Court: 6.8 A person may be questioned under oath as a witness for the purpose of obtaining a transcript of that person’s evidence for use at the hearing of the application, and (

a) rules 6.16 [Contents of appointment notice] to 6.20 [Form of questioning and transcript] apply for the purposes of this rule, and (

b) the transcript of the questioning must be filed by the questioning party. [ 14 ] Rule 6.8 is similar to its predecessor, Rule 266. The rule finds its origins in a longstanding practice in Canadian and British civil courts allowing for the collection of evidence from individuals, including parties, who cannot or will not provide affidavit evidence for motions: Dechant v Law Society of Alberta , 2000 ABCA 265 at paras 12-14 [ Dechant ].

[15] Numerous principles circumscribe the scope and manner of such questioning, including: a. The information sought must be relevant and material to the pending motion: Dechant at para 17; Alberta Treasury Branches vLeahy, 1999 ABQB 842 at paras 20-26 [Leahy]; Robertson v Edmonton (City) Police Service (#6), 2003 ABQB 188 at para 13, aff’d2003 ABCA 279; AP v SP, 2017 ABQB 672 at para 15; b. The questioning is not an examination for discovery and a fishing expedition is not permitted: Leahy at para 22; c.

Parties adverse in interest can be examined: Rule 6.20(2); Ferguson v Cairns (1959), (AB CA), 21 DLR (2d) 659at 662, [1959] 30 WWR 276 (Alta CA) [Ferguson]; d. The questioning party usually conducts an examination-in-chief of the witness and cannot cross-examine, but unlike thepredecessor rule, cross-examination is permitted of parties adverse in interest: Dechant at para 15; Rule 6.20(2); Precision DrillingCanada Limited v Yangarra Resources Ltd, 2013 ABQB 492 at paras 30, 37-38, 49, 54; e.

The witness may also be questioned by any other party and may then be questioned again by the party who summoned the witness:Rule 6.20(1); f. All of the evidence obtained at the questioning is placed before the judge hearing the application and forms part of the case of theparty who summoned the witness: Dechant at para 15; Ferguson at 662; g.

To the extent a witness is directed to produce records for the questioning, the notice must identify the records sought with as muchprecision as is fair and feasible, much like a subpoena duces tecum, and the records must be relevant to the pending application: ApotexInc v Alberta (1996), (AB KB), 182 AR 321, 38 Alta LR (3d) 153 at paras 38-39; Leahy at paras 24-26; h. The Court may regulate the questioning for abuse of process, including whether the application itself is an abuse of process:Dechant at para 14; i.

The Court may order the witness to attend for questioning and to bring records to the questioning: Rule 6.38; and j. The Court may provide directions in advance of the questioning on the scope of permissible questions: Dechant at para 16. [16] Rule 6.8 applies to every application filed in this Court unless a rule or an enactment otherwise provides or the Courtotherwise orders or permits: Rule 6.1(a).

b) The Surrogate Rules [17] Rule 2(1) of the Surrogate Rules confirms that the Civil Procedure Rules generally apply to surrogate proceedings andapplications: 2(1) The Alberta Rules of Court (AR 124/2010) apply to an application to the court if the matter is not otherwise dealt with under theseRules or the context indicates otherwise. [18] The hearing procedure for an application respecting a contentious matter, including a request for a formal proof of will trial orsummary dismissal of such a request, is addressed in Surrogate Rule 64(1), which states in relevant part: 64(1) The court, on hearing an application, may (

a) receive evidence by affidavit or orally; (

b) dispose of the issues arising out of the application as it considers appropriate; (b.1) direct a person to file a reply, accompanied with an affidavit, if evidence is to be submitted, or a demand for notice; (

c) direct a trial of issues arising out of the application; ... (

i) make any order that the court considers necessary in the circumstances. [emphasis added] [19] Division 3 of

Part 2 of the Surrogate Rules is entitled “Formal Proof of a Will.” Surrogate Rule 83 in Division 3 of

Part 2prescribes: 83(1) The hearing in an application for formal proof of a will under this Division must be in the form of a trial before the court and mustnot be held in chambers, (

a) if several witnesses are necessary in the opinion of the court, or (

b) if the court orders a trial.

(2) If the hearing is a trial, the applicant must apply to the court in chambers for directions on the procedure to be followed at the trial.

(3) The court on application under subrule (2) may (

a) set the procedure to be followed at the trial, including

(

i) giving directions on pre-trial disclosure of documents and questioning, (ii) ordering the production of documents, (iii) stating the parties and their roles, (iv) ordering the representation of parties, or (

v) dispensing with pre-trial procedures and sending the matter straight to trial, or (

b) despite subrule (1), order a hearing in chambers on affidavit or oral evidence or both respecting certain issues. [ 20 ] Pre-trial disclosure of documents and questioning is contemplated once a trial is ordered, but no express provision exists in the Surrogate Rules for disclosure and questioning prior to deciding the application for a trial. [ 21 ] The Court’s powers regarding formal proof of a will are stated in Surrogate Rule 90: 90 On an application under this Division the court may ... (

c) determine which will of the deceased, if any, to admit to probate; ... (

i) determine any other matter that the court considers relevant or that is incidental to the application. [ emphasis added ] [ 22 ] An “application under this Division” includes an application for formal proof of a will to be heard through a trial: Surrogate Rule 75(1).

c) Foundational rules assist with

interpretation [ 23 ] The purpose and intention of the rules, including Rule 6.8 and the Surrogate Rules , is informed by the foundational principles contained in Rule 1.2 of the Civil Procedure Rules : 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, ...

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [ 24 ] The foundational rules apply to the Surrogate Rules . See: Surrogate Rule 2; Surrendi (Estate of) v Surrendi , 2001 ABQB 1099 at para 13 ; McAndrew Estate (Re) , 2020 ABQB 614 at para 32 . [ 25 ] These foundational principles balance the Court’s truth-seeking function against the objective of timely and affordable process. The Court’s procedure must be proportionate to the interests at stake: Hryniak v Mauldin , 2014 SCC 7 at paras 27 – 29 . Challenging the will

[26] The Supreme Court of Canada explained in Vout v Hay, [1995] 2 SCR 876, (SCC) at para 26 [Vout], that onproving: ... the will was duly executed with the requisite formalities, and having been read over to or by the testator who appeared to understandit, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [27] This presumption of validity is rebuttable, but imposes an evidentiary burden on the person challenging the validity of thewill: Logan Estate (Re), 2021 ABCA 6 at para 21 [Logan Estate CA]. [28] The burden can be satisfied by “the attacking party introducing evidence of suspicious circumstances, that is, evidence which,if accepted, would tend to refute knowledge and approval or testamentary capacity, thus causing the legal burden to revert to theproponent” of the will: Logan Estate (Re), 2019 ABQB 860 at para 18. [29] The suspicious circumstances may be invoked by: (

a) circumstances surrounding the preparation of the will, (b)circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of thetestator was overborne by acts of coercion or fraud: Vout at para 25. [30] When determining whether a trial is necessary to formally prove a will, the test is whether the person seeking to rebut thepresumption has raised a “genuine issue to be tried”: Quaintance v Quaintance (Estate), 2006 ABCA 47 at paras 19 and 23[Quaintance].

A genuine issue requires an “evidentiary foundation” for a “well-grounded suspicion”: paras 19-20.

However, thestandard is not a high threshold: Logan Estate CA at para 22. [31] The evidentiary burden, nevertheless, requires corroboration through material evidence other than the applicant’s ownevidence due to s 11 of the Alberta Evidence Act, RSA 2000, c A-18, which reads: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested partyshall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of thedeceased person, unless the evidence is corroborated by other material evidence.

See: Logan Estate CA at para 16 [32] Material evidence of corroboration must be independent of the person bringing the challenge, assist “the judicial mindappreciably to believe one or more of the material statements of facts deposed by the party,” and “materially enhance the likelihood ofthe truth of the [challenging] party’s statement”: Logan Estate CA at para 17, referring in part to Bayley v Trust and Guarantee Co Ltd,[1931] 1 DLR 500 at 505-507, (Ont CA) and Murphy Estate v McLean Estate, 1992 ABCA 240 at paras 30-31. [33]

Section 11 of the Alberta Evidence Act guards against applications proceeding on nothing more than suspicion, innuendo andspeculation: Logan Estate CA at para 18. [34] The process to formally prove a will therefore operates in two stages.

The first is a gate-keeping function in which thechallenging parties must demonstrate, corroborated by other material evidence, that a genuine issue for trial is raised about thepreparation of the will, the testator’s capacity, or the testator’s free will being compromised by coercion or fraud. [35] The judge hearing the application for a proof of will trial may summarily determine that a trial is unnecessary if the evidencepermits the judge to determine the necessary material facts and apply the law to those facts, and a

summary disposition is aproportionate, more expeditious and less expensive means to achieve a just result: Logan Estate CA at para 24. [36] Conversely, if the Court is satisfied that a genuine issue for trial exists, the presumption of validity is rebutted and the secondstage – a trial or other hearing – is engaged. [37] At the second stage, a full inquiry proceeds into the merits. Discovery through questioning and record production is expresslycontemplated by Surrogate Rule 83. When determining the scope of permissible discovery, the will is not presumed to be valid.

Pre-application questioning is available [38] The Personal Representatives contend that Rule 6.8 does not apply because Surrogate Rule 2 excludes the Civil ProcedureRules for a matter: a. “dealt with under these [Surrogate Rules]” or b. where “the context indicates otherwise.” [39] They argue that the Surrogate Rules only allow the disclosure of documents and questioning if a trial is ordered.

I do notagree. [40] Surrogate Rule 83 authorizes the Court to set pre-trial disclosure of documents and questioning after a trial is ordered, but theSurrogate Rules are silent about pre-application disclosure and questioning prior to the hearing of an application for a proof of will trial.Since the procedure for hearing the Trial Application is not expressly “dealt with” under the Surrogate Rules, the Civil Procedure Rulesare not excluded on that basis. [41] Similarly, the context does not indicate that questioning should be prohibited.

The Surrogate Rules contemplate pre-trialrather than pre-application discovery, but questioning under Rule 6.8 is not discovery. The scope of the questions and any attendantdocument production is restricted, both by the principles regulating pre-motion questioning and the narrowed purpose of the application

(i.e. to show a genuine issue to be tried, corroborated by other material evidence). [42] Surrogate Rule 64(1)(

a) expressly contemplates the possibility of oral evidence for the Trial Application, although the processfor collecting and presenting that evidence is not explicitly described. The Civil Procedure Rules, including Rule 6.8, are of generalapplication and supply the necessary procedure. [43] This approach is consistent with the Court’s truth-seeking function, early resolution objectives, proportionality and proceduralfairness. [44] Pre-application questioning facilitates a measured search for the truth.

Early disclosure also facilitates honest, open and timelycommunication between the parties, crystalizes the issues in dispute, and promotes settlement – as contemplated by the foundationalrules. [45] The importance of early disclosure in surrogate disputes has long been recognized.

In Kryczka v Kryczka, (1979) 17 AR 263,, at para 5, Justice Hetherington (as she then was) approved of the following sentiments from Menzies v McLeod(1915), (ON SC), 34 OLR 572 at 576, 25 DLR 777: The court favours an early disclosure of all matters surrounding the execution of the impeached will from those who know, that anopportunity may be given in a proper case to withdraw from hopeless or unnecessary litigation. It is to be remarked also that in probate actions especially the court exercises a wider latitude in ordering discovery than in other actionsnot ‘in rem’, owing to the nature of the issues raised.

It is the duty of the court not only to do justice between the parties, but also to dojustice to the deceased... [46] Disclosure at the first stage of the proceedings, however, is constrained by the effects of any legal presumptions and the needto balance competing interests. At this point, the testator’s will is presumptively valid and ostensibly reflects his wishes. Until a genuineissue is demonstrated, corroborated by other material evidence, that presumption must be honoured.

The deceased’s privacy interestsshould be viewed through that lens when disclosure is sought of privileged and confidential information, including legal advice andhealth records. Similarly, the estate should not be strained by complex, time-consuming and expensive discovery that bleeds thebeneficiaries of their inheritance and therefore frustrates the testator’s presumptive intentions. [47] Access to pre-application questioning advances procedural fairness since the Applicants are obligated to meet an evidentiaryburden and obtain corroboration through material evidence from other sources.

In meeting their onus, measured litigation proceduresshould not be foreclosed to them. [48] Concerns about procedural fairness also arise if a respondent may selectively introduce evidence through partial pre-application disclosure or the cross-examination of an applicant, knowing that the respondent is shielded from any correspondingquestioning. [49] Here, the Personal Representatives authorized some partial disclosure of information about the testator’s health, testamentarycapacity and intentions, and estate planning through letters sent by the estate’s lawyer to the Applicants.

The letters are included withinthe Trial Application evidentiary record. The Personal Representatives, through their own lawyer, then cross-examined Frances Neillabout the selective disclosures, knowing that a transcript of the questioning would form part of the record before the judge hearing theTrial Application. That selective presentation of the evidence, with no opportunity to explore the Personal Representatives’ knowledge,risks a misleading presentation of the facts to this Court. [50] Procedural fairness must also address the Personal Representatives’ cross-application for

summary dismissal. In othercircumstances, Rule 6.8 can be used to question a party seeking

summary dismissal: SWAT Consulting Ltd v Canadian Western Bank,2018 ABQB 875 at para 87; Cicalese v SSMPG Integrating Services Inc, 2020 ABQB 605 at paras 145-146; Honourable PatrickBurns Estate Memorial Trust v P Burns Resources Ltd, 2014 ABQB 779 at para 13. No compelling reason is offered for an absoluteprohibition on that procedure in surrogate proceedings.

Concerns about fishing expeditions, the testator’s privacy interests, and excessivedelay and expense occasioned by exuberant demands for disclosure can be managed by the Court. [51] Immunizing an adverse party from questioning is especially concerning when undue influence is raised. The living witnesswho is likely the most knowledgeable about the interactions with the testator would be hidden from the Court. [52] Even if Rule 6.8 was not available, pre-application questioning could be ordered under the Surrogate Rules. Surrogate Rule64(1)(

i) allows the Court to “make any order that the court considers necessary in the circumstances.” Moreover, Surrogate Rule 90(i)permits the Court to “determine any other matter that the court considers relevant or that is incidental to the application”, which includesthe application for the formal proof of will trial. [53] Regardless of whether the questioning proceeds under Rule 6.8 or one of the Surrogate Rules, the Court may restrict the scopeof the questioning to prevent abuse of process, safeguard sensitive information, and respect proportionality. [54] Here, Francis Neill deposes to facts demonstrating that she is not engaged in an abuse of process.

She identifies pastrepresentations from the testator by which he communicated intentions that are incompatible with the dispositions contained in theprobated will. She provides evidence about the testator’s declining health during the year preceding his final will, including somecognitive capacity concerns. She also provides facts from which undue influence might be inferred.

The current evidence is enough toassuage concerns about a fishing expedition. [55] For the interlocutory application before me, the parameters of the proposed Rule 6.8 questioning have not been delineated,except that specific requests for documents have been noted from which an intention to question about their contents and surroundingcircumstances may be inferred. I will address possible restrictions on that questioning in the context of my comments below about theproduction of documents.

[56] Without limiting the scope of permissible questioning, I confirm the Personal Representatives may be questioned as ordinaryfact witnesses about their personal interactions with the testator during his lifetime, including their observations of his mental capacityand their involvement in his testamentary decision-making. [57] Questioning the Personal Representatives about information acquired in their roles as estate representatives after the testator’sdeath might be restricted by the testator’s privacy interests in that information and privilege claims over solicitor-client communications.However, to the extent the Personal Representatives have waived confidentiality or privilege, that might permit questioning.

As waiverwas not argued before me, I decline to provide any directions on that issue at this time. [58] The parties may return to me if directions are required about the scope of permissible questioning. Pre-application record production is constrained [59] The Applicants seek the estate solicitors’ files, medical records, driver’s licence documents, previous wills, other estateplanning and farming corporation records, and financial documents for dealings completed under a power of attorney.

Disclosure ispurportedly required because the Personal Representatives “hold all the cards” and an injustice will result without that information. [60] The balance between disclosure in aid of litigation and the deceased’s privacy interests depends on the nature of the recordsinvolved and the testator’s expectation of privacy: for example, solicitor-client communications demand a high level of protection. In theparties’ submissions, the reasons for seeking or resisting disclosure of specific categories of records were not addressed in any detail.

Iwill therefore confine my comments to general observations, except where sufficient information was offered for a ruling. Either partymay seek additional directions from me.

a) Solicitor-client privileged communications [61] Solicitor-client privilege is a substantive rule of law and a principle of fundamental justice: Alberta (Information PrivacyCommissioner) v University of Calgary, 2016 SCC 53at paras 38-41 [University of Calgary]; Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860, 141 DLR (3d) 590; Solosky v The Queen, [1980] 1 SCR 821 at 833, (SCC). [62] As a substantive rule, “solicitor-client privilege must remain as close to absolute as possible and should not be interfered withunless absolutely necessary” and “only yields in ‘certain clearly defined circumstances, and does not involve a balancing of interests on acase-by-case basis’...”: University of Calgary at para 43. [63] Solicitor-client privilege survives the relationship and the client’s death, but an exception arises for cases involving wills andtrusts where disclosure of lawyer-client confidences furthers the interests of the former client: Geffen v Goodman Estate, [1991] 2 SCR353, (SCC) [Geffen].

The interests of the deceased client are advanced by allowing confidential information to beadmitted to ascertain the deceased’s wishes and true testamentary intentions: Geffen at 385; Bre-X Minerals Ltd (Trustee of) vVerchere, 2001 ABCA 255 at para 23. [64] The exception is reflected in Surrogate Rule 85(2) by which any “person who took instructions for the preparation of the willis compellable as a witness and subject to pre-trial disclosure and production of documents and oral questioning.” [emphasis added] Therule says nothing about disclosure, production or questioning before a trial is ordered. [65] When access to privileged communications is allowed, disclosure may be constrained and managed by the Court to ensurethat the deceased testator’s privacy is respected.

This approach honours the testator’s expectation that the devolution of his estate couldbe planned in confidence with the assistance of trusted advisors: Aldred Estate (Re), 2018 ABQB 600. [66] At this stage of the proceedings, the probated will is presumed to reflect the testator’s intentions. Confidential information isnot required to ascertain those intentions since they are expressed through the will. Consequently, pre-application disclosure isunnecessary. [67] A mere allegation that the will is suspect therefore does not attract the exception to the privilege.

If the result were otherwise,all testators would be at risk of having their confidential communications with legal advisors exposed through unsubstantiatedapplications to the courts. That would defeat the purpose of the privilege. Furthermore, the time, effort and expense of sifting through thehistory of privileged communications would diminish the inheritance left to the beneficiaries and frustrate the efficiency the testatorenvisioned by organizing the disposition of his estate.

All of that would offend the testator’s intentions. [68] Accordingly, in the normal course, until a genuine issue for trial corroborated by other material evidence is established,resulting in an order directing formal proof of the will, the privilege survives and disclosure of solicitor-client communications shouldnot occur. [69] The evidentiary record in this matter, however, raises a complication: the testator’s Personal Representatives may havewaived the privilege, at least in part.

A June 8, 2020 letter from one of the estate’s lawyers to the Applicants’ counsel discusses some ofthe circumstances under which the testator prepared his wills in 2014 and 2015. The letter was copied to the attention of the PersonalRepresentatives and suggests they authorized the disclosures. [70] The estate lawyer’s letter mentions some of the advice provided, including a recommendation to speak with an accountantbefore executing one of the wills, which the testator apparently disregarded.

The lawyer also reported some of her observations andopinions about the testator’s capacity and directions, as well as the views of another lawyer in her firm who assisted the testator with his2016 will. [71] The estate lawyer provided a second letter to the Applicants’ counsel on June 23, 2020, again with the apparent consent of the

Personal Representatives. Reference was made to specific concerns the testator shared about the disposition of his estate, as well as hisintentions for the structure of his cash bequests and specific gifts. [72] The letters are part of the evidentiary record for the Trial Application. The partial disclosure of potentially privilegedcommunications invites the concern that selective disclosure might create an unfair advantage or a misleading picture of the testator’sintentions and capacity. That risk might attract an implied waiver of the privilege.

See discussion in HZ v Unger, 2012 ABQB 18 atparas 28-32. [73] Communications protected by solicitor-client privilege should only be disclosed where “absolutely necessary”, applying “asrestrictive a test as may be formulated short of an absolute prohibition in every case”: Goodis v Ontario (Ministry of CorrectionalServices), 2006 SCC 31 at para 20. [74] At this juncture, as the parties have not specifically addressed waiver, I will not provide any further guidance on this point.

b) Medical information [75] A significant expectation of privacy is engaged by a person’s medical records, although the privacy interest is not absolute:McInerney v MacDonald, [1992] 2 SCR 138, (SCC); M(

N) v Drew (Estate of), 2003 ABCA 231 at para 120. Healthrecords are also statutorily safeguarded: Health Information Act, RSA 2000, c H-5, ss 2(

a) and 31. [76] Health information can be protected from disclosure in litigation: AM v Ryan, (SCC), [1997] 1 SCR 157,143 DLR (4th) 1 at para 38. [77] The privacy interests in health information continue after death: Vlasic v Fleming, 2019 BCSC 1735 at para 49; People Firstof Ontario v Porter, Regional Coroner Niagara (1991), 5 OR (3d) 609, (Ont SCJ), varied on other grounds at(1992), 6 OR (3d) 289, (Ont CA). [78] Section 35(1) of the Health Information Act nevertheless provides for disclosure of health records, even where consent is notgiven, in various circumstances, including where the person is deceased. [79]

Section 104(

d) of the Health Information Act authorizes a personal representative to access the deceased’s health informationif the exercise relates to the administration of the deceased’s estate. [80] Disclosure is not granted as of right. The Court must balance the protection of the testator’s privacy interests against thenecessary level of disclosure to advance the administration of justice.

Moreover, as explained in Neuberger v York, 2016 ONCA 191, atpara 68, the Court’s role is not simply to adjudicate upon a dispute between parties: …It is the court’s function and obligation to ascertain and pronounce what documents constitute the testator’s last will and are entitled tobe admitted to probate. Further, the granting of probate does not bind only the parties to the proceeding. Unless and until probate is setaside, it operates in rem and can affect the rights of other persons.

The court also has a special responsibility to the testator, who cannotbe present to give voice to his or her true intentions. [81] These competing interests must be considered when deciding whether and to what extent the deceased’s medical records willbe exposed to a person challenging the will. [82] The Applicants have not expressly informed me about the scope of the medical production sought. The Trial Applicationrequests records from 2012 until death. However, the June 23, 2020 letter indicates that the Applicants were pursuing all medicaldocumentation spanning the last ten years of the testator’s life.

The Personal Representatives refused, characterizing the request as“overreaching” and impractical. The testator lived independently for almost all of that ten-year period and his treating physicians andattendances were largely unknown to the Personal Representatives. [83] The estate’s lawyer volunteered some medical information to the Applicants, in particular, a 2016 memorandum from aphysician addressing the testator’s overall medical condition, including a cognitive review, for a motor vehicle operator’s licencerenewal.

The memorandum describes subtle changes in memory and word-finding difficulties, but no concerns regarding praxis,executive functioning, recognition, or social cognition.

The memorandum also summarized the testator’s medical history, currentmedications, and a mental state examination. [84] The effect of the medical disclosure is that much of the deceased’s recent medical history has been revealed to the Applicants.Additional disclosure should only marginally infringe on his privacy interests. [85] In striking a balance between truth-seeking and privacy, while ensuring the testator’s true intentions are honoured, I agree thatdisclosure of the deceased’s medical records for a ten-year span seems excessive.

The production should be focused on the timeframeduring which his capacity is in doubt. Wills were created from 2014 through 2016 with some suggestion that the testator’s approach tohis estate planning changed during that time. Limiting the disclosure to those years seems to be reasonable. However, if the partiescannot agree, they may return to me. [86] If a court order is required to facilitate the Personal Representatives’ efforts to collect medical records from non-parties,counsel may approach me.

c) Driver’s licence records [87] The Applicants seek documents relating to the deceased obtaining his driver’s licence. The physician’s memorandum hasalready been disclosed. Nothing before me indicates that additional relevant and material records exist.

d) Previous wills [ 88 ] The estate lawyer’s letters identify previous wills from 2012, 2014, and 2015. The lawyer gave the Applicants a memorandum which was attached to the 2012 will, but apparently not the will itself. The letters also disclosed certain patterns the estate lawyer observed in the testator’s wills over the years. [ 89 ] As the testator’s 2016 will is presumptively valid, prior wills would not usually be relevant. However, the limited disclosure authorized by the Personal Representatives lacks context without the wills.

The incomplete disclosure could be misleading for the judge hearing the Trial Application. Subject to further submissions from counsel, production of the wills from 2012 to 2015 seems to be appropriate.

e) Estate planning documents and the corporate records [ 90 ] Insufficient information and submissions are before me to provide any preliminary guidance about producing estate planning records outside the solicitors’ files and the testator’s corporate records. The testator’s pre-death financial life is confidential: Duhn Estate , 2021 ABQB 35 at paras 35 , 39.

f) Power of attorney records [ 91 ] The testator’s Power of Attorney was exercised in January 2020. He passed away on March 28, 2020. The submissions do not explain how these records, including transactions conducted by the attorneys, assist the Applicants in meeting their evidentiary burden for the Trial Application. I therefore decline to comment about disclosing these records. Conclusion [ 92 ] A Rule 6.8 questioning is allowed.

The parties may return to me or another judge of this Court to obtain further directions about the scope of the permissible questions and the document production, if they cannot resolve those matters themselves. [ 93 ] Costs of this application are reserved for determination at the Trial Application. Heard on the 17 th day of March, 2021. Dated at the Town of St. Paul, Alberta this 19 th day of April, 2021. K.S. Feth J.C.Q.B.A. Appearances: Marco S. Poretti for the Applicants Helen Ward for the Respondents