When Suspicion Isn't Enough: Lessons from Graham v. McNally Estate

In Graham v. McNally Estate and Blais, 2024 ONSC 4006, the Ontario Superior Court of Justice offers a clear reminder to litigants in will challenges: the threshold for challenging a will may be low, but it is not non-existent. Justice Corthorn dismissed the will challenge for failing to meet the minimal evidentiary threshold required to proceed, emphasizing that speculation and dissatisfaction are not substitutes for evidence.

The Dispute

The applicant, Patricia Graham, contested the validity of her late sister Sheila McNally’s 2020 will on three common grounds: (1) lack of testamentary capacity; (2) undue influence; and (3) suspicious circumstances.

Sheila had appointed her long-time friend Katherine Blais as estate trustee and principal beneficiary. Patricia, who had not seen Sheila since 2011 and last spoke to her meaningfully in early 2019, was excluded entirely. Notably, Patricia had also been excluded from Sheila’s previous will, made in 2001.

The Outcome

The court concluded that Patricia failed to provide any evidence—let alone sufficient evidence—that would justify putting the estate to the cost and burden of a full trial. The application was dismissed on the motion of the estate trustee, with costs awarded against Patricia.

Key Takeaways for Estate Litigants

The Bar Is Low, But It Exists.  Ontario Rule 75.01 allows a financially interested party to seek to have a will proved in solemn form. But as the Court of Appeal emphasized in Neuberger v. York, a litigant must adduce some evidence that would, if accepted, call the validity of the will into question. Mere dissatisfaction or disbelief is not enough.

Credible Evidence Matters.  Patricia relied almost entirely on her own affidavits and beliefs. She offered no medical evidence, no testimony from those close to Sheila in her final years, and no evidence of coercion or control. The judge characterized her allegations as “suspicion or speculation” rather than proof.

Longstanding Exclusion Can Be Telling.  Interestingly, Patricia’s main objection appeared to stem from the fact that a “relative stranger” received the estate. But the court noted that Sheila had made similar decisions in her earlier will and had, in both cases, chosen not to include Patricia or her daughter Laura. That pattern undermined claims of undue influence or sudden shifts in intention.

No Fishing Expeditions. This case reinforces that the court will not allow disappointed relatives to fish for evidence under the guise of a will challenge. Without a foundation, such applications will be shut down early.

Costs Can Follow Failed Challenges.  Challengers should be prepared to bear the costs of failed litigation. Here, the court ordered Patricia to pay the reasonable legal costs of both the estate trustee and another respondent.

Final Thoughts

Graham v. McNally Estate is a sobering caution for potential will challengers. A sense of unfairness or familial estrangement, however painful, will not carry the day. Claims of undue influence or incapacity must be anchored in concrete, admissible evidence put before the court. Without that, Ontario judges are increasingly willing to shut down unmeritorious claims early and decisively.