Admissibility of Surviving Family Member’s Medical Records at Issue in Estate Dispute

January 25, 2022

written on behalf of Feigenbaum Law

One of the unfortunate realities of estate litigation is that it often involves family members who are at odds over what should happen to the estate of a loved one. One issue that arises in the course of these disputes is whether a party who is challenging a will has done so within the legislated limitation period.

In Kinnear v. Kinnear, a dispute arose between two brothers after their deceased father left the entirety of his estate to only one of his sons. The court was required to determine the admissibility of one son’s medical records and their relevance to the issue of whether he filed his action within the two-year limitation period after he became aware of all relevant facts.

Father Left Estate to One Child

The situation found its way before the court after the testator, who was the father of both the applicant and the respondent, left his entire estate to the respondent alone. The testator’s will was signed on August 13, 2015, and he died on October 11 of the following year.

The facts state that the testator was introduced to the lawyer who drafted the will and was driven to appointments by the respondent’s wife, who was assigned power of attorney for the testator’s personal care and property. A physician told the court that shortly after the will and powers of attorney were complete, the testator took part in a Mini-Mental State Examination, with the results indicating that he was not competent to make financial decisions.

The applicant also provided the court with an email he wrote to his brother a few months before their father died, stating that their father wanted to make some changes to his will, but did not indicate what those changes were.

Applicant Challenged Will, Respondent Sought Production of Applicant’s Medical Records

The applicant challenged the validity of the will because he said the testator lacked the testamentary capacity to make it and that the respondent and his family had exercised undue influence leading to the new will being drafted. He said that while he knew changes had been made to the will, he had no idea what they were or that a power of attorney was being put in place.

The respondent’s position was that the applicant’s challenge to the will came too late and that for a challenge to be entertained, it must be made within two years of the testator’s death. The respondent said the applicant knew in 2015 that a new will had been drafted and that he was cut out of the estate. The respondent said he knew his brother was aware of the details of the will because he told a psychiatrist about it. This led to the respondent seeking access to the applicant’s medical records containing notes of the conversations he had with his psychiatrist. The applicant was opposed to the release of his medical records.

Court Reviewed Whether Applicant Waived Privilege Over Medical Records

The central issue before the court was whether the interests of justice require the production of the applicant’s medical records. The Rules of Civil Procedure in Ontario state that a court can order such production if it is relevant to a material issue in an action and if it would be unfair for the moving party (the respondent in this case) to proceed to trial without having access to the records.

The Supreme Court of Canada issued a decision in 1997 laying out four necessary requirements to support a claim of privilege between a psychiatrist and a patient. They are:

a) the communication at issue originated in confidence that it would not be disclosed;

b) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

c) the relation must be one which in the opinion of the community ought to be sedulously fostered; and

d) the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

Court Held Applicant had Not Waived Privilege, Refused Disclosure

The respondent told the court that the applicant waived this privilege when he told the respondent he had talked to a psychiatrist about things, meaning the four requirements had not been met. The court was not satisfied with this, though, and stated that the applicant has consistently opposed the disclosure of psychiatric records. Instead, the court was satisfied that the first three requirements were satisfied based on the evidence presented by the psychiatrist.

In addressing the fourth requirement, the court stressed the importance of balancing the interests of each party, ultimately finding that the respondent had failed to produce evidence to show that the records contained any information that would be helpful to their case. The court suggested that the respondent dig deeper into other resources, such as communications with the applicant and with the testator’s lawyer, to support their position that the applicant was aware of the details pertaining to the will.

Contact Feigenbaum Law in Toronto for Experienced Estate Litigation Services

At Feigenbaum Law, we understand the emotional and financial toll that estate litigation can have on families. Mark Feigenbaum works closely with our clients to protect their rights and entitlements at every stage of an estate dispute. Please reach out to us online or by phone at 1-877-275-4792 to schedule a consultation on your estate matter.


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