Manitoba appeal court revives disclosure motion in will dispute

A son contesting his father’s will is entitled to a new hearing on his request for records after Manitoba’s Court of Appeal ruled that a judge had failed to give effect to the parties’ agreed litigation process. In Simmons v Sinclair, 2026 MBCA 74, released Aug. 31, 2026, the court allowed the appeal in part and sent the disclosure motion back to a different judge.

The unanimous ruling turns on an existing consent order requiring the parties to disclose relevant records and undergo examinations for discovery. It does not determine whether the will is valid or direct the production of every document requested.

A will signed two days before death

Lloyd John Simmons signed a new will in hospital on Jan. 19, 2023, two days before his death. His lawyer, Peter Michael Sinclair, prepared the handwritten document from his instructions and read it back paragraph by paragraph. An unrelated third party and the treating physician witnessed it.

The deceased’s son, Lloyd Joseph Simmons, had been the sole beneficiary under a 1994 will. The new will made substantial gifts to Weibin Guo, who had lived with and cared for his father, while also leaving assets to the son and naming him as the residual beneficiary.

The son applied to invalidate the new will, raising allegations about testamentary capacity, knowledge and approval, suspicious circumstances and undue influence. Those issues remained disputed. In August 2023, the parties obtained a consent order setting the process for resolving the challenge.

The order provided for disclosure of relevant records under rule 30 of Manitoba’s King’s Bench Rules and examinations for discovery under rule 31, as though the application were an action. It also addressed access to legal files and the deceased’s privileged and confidential records.

Screening test applied after process was agreed

A later disagreement over disclosure led the son to seek further medical, legal and financial records, among other documents. The motion judge refused the request primarily because the son had not met a minimum evidentiary threshold that the judge considered necessary to justify disclosure.

That approach drew on Ontario decisions, including Neuberger Estate v York and Seepa v Seepa, and subsequent Manitoba cases. Those authorities address preliminary screening of will challenges to protect estates from costly litigation founded on unsupported allegations.

Justice James Edmond, writing for the appeal court, found that the existing consent order made the difference. The parties had already agreed to a process involving disclosure, discovery and a pre-trial conference. No party had sought to set aside or vary that order.

Once approved and signed by the court, a consent order binds the parties with the force of a judgment. The question on the records motion was therefore the extent of relevant disclosure under that order, rather than whether the son should first be permitted to pursue the agreed litigation process.

The motion judge erred by treating the rule 30 disclosure analysis as equivalent to the preliminary evidentiary screening described in the earlier estate cases.

Broader screening question left open

The court expressly left unresolved whether Manitoba should adopt the Neuberger approach more generally. It recognized that there might be sound reasons to require some evidence calling a will’s validity into question, while noting concerns that screening can obstruct legitimate inquiries.

For this appeal, however, the agreed process governed. The court also cautioned judges deciding such motions about making statements that effectively resolve facts or legal questions still to be tried.

Although disclosure orders are ordinarily interlocutory, the court found that this ruling affected substantive rights conferred by the consent order and could, to that extent, be appealed without leave.

Justices Marc Monnin and Anne Turner agreed with Edmond. The court awarded the son tariff costs of the appeal. A different motion judge must now decide which relevant documents should be produced; the appeal ruling itself resolves neither the allegations behind the will challenge nor the document-by-document disclosure dispute.