Lost Wills and Last-Minute Motions

Lessons for Estate Litigants from Aitken v. Aitken (2026 ONSC 1382)

By David P. Gould, Fallow Gould LLP — Estates Litigation

In Aitken v. Aitken, 2026 ONSC 1382, the Ontario Superior Court of Justice offers a practical reminder for litigants in estate proceedings: if a party believes additional evidence or cross-examinations are required in a will-proving application, the proper course is to bring a motion for directions promptly. Waiting until the eleventh hour can prove fatal.

Justice Ryan Bell’s decision illustrates how courts expect parties in Rule 75 applications to exercise diligence and use the procedural tools available to them in a timely way.

The application was brought by the daughter of the deceased to prove the lost will of her mother, dated February 2, 2000.

Two of the applicant’s brothers opposed the application. Early in the proceeding, they sought various productions, including financial records and estate documents. Those requests were largely resolved through a consent production process. The matter was then scheduled to proceed toward a hearing on the validity of the will.

By the fall of 2025, the court had set a timetable for responding affidavits to be delivered, for cross-examinations on those affidavits to be completed, and had scheduled a hearing date of mid-March 2026.

Despite having months to review the evidence and pursue discovery, the respondents served only an expert report and did not deliver responding affidavits. Cross-examinations proceeded on the scheduled timetable.

Two days before the deadline for completing cross-examinations, the respondents attempted to reopen the evidentiary record. They served notices seeking to compel further cross-examinations, including of a non-party witness who had sworn an affidavit early on in the litigation.

The applicant resisted these eleventh-hour attempts, and the respondents obtained certificates of non-attendance in respect of those examinations. The applicant brought a motion to strike out the notices of examination and certificates of non-attendance, and the respondents brought a cross-motion seeking a Mareva injunction, Norwich Pharmacal production from third party banks and law firms, and other equitable relief that would have effectively reopened the evidentiary record beyond the agreed timetable and derailed the scheduled hearing.

After hearing the motions, Justice Ryan Bell struck the certificates of non-attendance and dismissed the respondents’ motion for further relief.

The court held that the respondents had not exercised reasonable diligence in pursuing the additional examinations they sought. They had possessed the relevant affidavits for months and had ample opportunity to address any concerns earlier in the proceeding.

Instead, the respondents were found to have waited until the last minute to seek further discovery. In the Court’s view, th

at delay was decisive. The Rules of Civil Procedure require parties to exercise their procedural rights diligently, and courts are entitled to refuse last-minute attempts to reopen the evidentiary record where the delay is unexplained or tactical.

Justice Ryan Bell emphasized that if the respondents believed additional examinations were required, the appropriate step would have been to bring a motion for directions well in advance of the cross-examination deadline. Waiting until days before the deadline—and attempting to compel attendance on less than two days’ notice—was not reasonable.

The court therefore refused to permit further cross-examinations and allowed the application to proceed on the existing evidentiary record.

Key Takeaways for Estate Litigants

Use Motions for Directions Early.  Rule 75 applications often involve procedural uncertainty, particularly in lost-will cases or where third-party evidence is involved. A motion for directions is the proper mechanism to resolve those issues. But it must be brought in a timely way.

Deadlines Matter.  Courts increasingly enforce procedural timetables in estate litigation. Attempting to reopen discovery shortly before a deadline—particularly when the evidence has long been available—risks being characterized as a failure to exercise reasonable diligence.

Cross-Examinations Must Be Pursued Promptly.  Where affidavits are served early in a proceeding, parties are expected to act promptly if they wish to cross-examine. Waiting months and then issuing last-minute notices of examination will rarely succeed.

Courts Will Protect the Integrity of the Schedule.  Litigation schedules exist for a reason. Allowing parties to reopen discovery at the last minute can derail hearings and increase costs. Courts are therefore willing to refuse such requests where the delay is unjustified.

Aitken v. Aitken is a reminder that procedural discipline matters in estate litigation. The Rules provide tools—such as motions for directions—to address uncertainty about discovery and evidence. But those tools must be used promptly and responsibly.

Parties who delay, hoping to revisit evidentiary issues at the last minute, may find that the court simply refuses to reopen the record.

Thanks for reading!