The court might be starting to get fed up with too many weak estate challenges - at least I hope so.

Estate litigation hasn't changed that much over the years. Many of our laws, rules, and processes have been in place for a very long time. Lately, however, there just might have been an important shift - or at least the beginning of one - in how things are done.

In the estate of Neuberger Estate v York, the Ontario Court of Appeal didn't seem to like the fact that pretty much anyone could file a Notice of Objection that would bring the informal probate process to a halt while piles of personal and financial information about the deceased is provided to those challenging the will. When the Notice of Objection is filed, an executor would have to go through the courts either to get rid of the objector's claim or to prove the will is valid. Either choice involves time, money, and delays for the estate. This system exists so that people with legitimate concerns about estates have a method of having those concerns brought to the attention of a judge. In Neuberger, the court thought that too many people were filing Notices of Objection when those people did not really have enough evidence for a court challenge.

The court said that in order for a will challenge to go ahead, the person filing the Notice of Objection must first meet a standard of a "minimal evidentiary threshold". This means the person who wants to contest the will must have some minimum amount of reliable evidence available for his challenge. The person must be able to show the court that there is some good reason for the challenge before he can be allowed to proceed with the gathering of information and resulting challenge.

In a way, it seems unbelievable that such rule was not already in effect. We do have some similar protections, such as the requirement to show that there is a genuine issue for trial before certain contests (such as undue influence) may proceed to trial. However, by the time we get to chambers to argue the question of whether there is a triable issue, there has already been considerable delay of the estate, legal fees racked up, and plenty of private estate information divulged to all parties. In other words, there are plenty of people taking advantage of the current (old) system to take advantage and cause all kinds of unjustified legal trouble for an estate. In my opinion, it's a system that is more vulnerable to abuse than it needs to be.

Now the courts are working with the phrase "minimal evidentiary threshold" to try to set some guidelines as to what that threshold might be. The judge in Neuberger said that each case would turn on its own facts, but still we in the legal profession want certainty so that we can provide effective legal advice to our clients.

The application of the phrase so far seems to point to the courts denying individuals who want to contest a will the chance to go on what the judge has called "intrusive, expansive, expensive, slow, standard form fishing expeditions", even though such expeditions have traditionally been the automatic response. The courts suggested looking at solutions more tailored to individual cases including mediation and case management.

I talk to people every day who want to challenge wills because they don't like what they contain. There isn't always a good legal reason for the challenge. They don't like being told that their case is not strong and often want to plow ahead anyway. I hope this type of response from judges will deter those who really don't have a case from using the courts and free up court resources for those who really need them.