An Ontario Superior Court Justice has ordered a lawyer to surrender her confidential client files1 concerning a deceased man, Robert John Kelly, after his ex-wife raised what the court described as “serious suspicions” about the circumstances surrounding his death and the sudden creation of a new will that largely benefited his recent partner. The ruling pierces the normally sacrosanct veil of solicitor client privilege, finding that the need to investigate allegations of undue influence and lack of capacity outweighed the confidentiality of the legal advice.
The decision, released on August 12, 2025, is a significant step in a contentious legal dispute between Karen Butt, the former wife of Mr. Kelly and the mother of his three children, and Robyn Graham, who was in a relationship with Mr. Kelly before his death and was named the primary beneficiary and executrix of his estate.
The legal saga has its roots in the complex personal history of Mr. Kelly. He and Ms. Butt were previously married and shared three children. After their separation on October 24, 2013, their financial ties continued through the court system. A judgment from the Superior Court of Québec ordered Mr. Kelly to pay Ms. Butt a sum of $186,015.12 to settle the division of family property and to cover retroactive child and spousal support obligations.
Around 2015, Mr. Kelly began a new relationship with Ms. Graham. That relationship, however, also soured. The court heard that the couple separated in March 2021, with Mr. Kelly’s alcohol use disorder cited as a reason for the split. The situation between them was far from amicable. During the first five months of 2021, Mr. Kelly sent text messages to his ex wife, Ms. Butt, in what were described as attempts to rekindle their relationship. In May 2021, Ms. Graham filed a police report against Mr. Kelly, signalling a deep rift between them.
It was during this period of conflict that Mr. Kelly sought legal advice. On or about May 19, 2021, he consulted with lawyer Angela Daniels of Daniels Law Firm. The purpose of the consultation was to address legal matters arising from his separation from Ms. Graham, including his estate planning and financial affairs, and specifically to advance property claims against her. The adversarial nature of their relationship at this time was made clear in a message Ms. Graham sent to Ms. Butt, stating, “And I just heard from Robs attorney. Guess he’s going to try and get your money out of me.”
Events took a dramatic turn less than a month later. On June 11, 2021, Mr. Kelly was hospitalized. He would remain in the hospital for two months, until August 12, 2021. During this period of grave illness, Ms. Graham re-entered his life, visiting him frequently and becoming increasingly involved in his affairs. It was alleged in court that by late June or early July 2021, Mr. Kelly was no longer coherent and his health was in rapid decline.
A series of significant legal and financial documents were executed by Mr. Kelly from his hospital bed in the weeks that followed. On July 6, he appointed Ms. Graham as his Power of Attorney for Personal Care. Ten days later, on July 16, he changed the beneficiary designation on his Supplementary Death Benefit, making Ms. Graham the sole recipient. On July 26, he granted her further control by executing a Power of Attorney for Property.
On August 4, 2021, another change was made to his life insurance policy. Ms. Graham was named as a 40 percent beneficiary. The court document stated that each of his three children and his ex wife, Ms. Butt, were named as 20 percent beneficiaries. The final and most critical document was executed on August 8, 2021. Mr. Kelly signed a Last Will and Testament that appointed Ms. Graham as the sole estate trustee. The will directed that his three children would each receive 20 percent of the estate. His former wife, Ms. Butt, was left one dollar. A church was bequeathed $5,000, and the entire residue of the estate was left to Ms. Graham.
Notably, court documents revealed that none of these crucial testamentary documents were prepared by a lawyer. The witnesses to their execution were identified as friends of Ms. Graham.
Shortly after signing the new will, on August 12, 2021, Mr. Kelly was discharged from the hospital and taken to Ms. Graham’s home. He passed away there on August 25, 2021, less than two weeks later.
Faced with this sudden and complete reversal of Mr. Kelly’s financial and estate plans, which occurred while he was severely ill, Ms. Butt and her children launched a legal challenge. As part of that challenge, they brought a motion before the court seeking an order for the production of all records from the lawyer Mr. Kelly had consulted in May 2021, Angela Daniels. They also sought permission to formally examine Ms. Daniels about the advice she provided.
Lawyers for Ms. Graham and the estate argued that the files were protected by solicitor client privilege, a cornerstone of the legal system that ensures communications between a client and their lawyer remain confidential. They contended that this privilege survives death and that the narrow “wills exception,” which can sometimes permit disclosure to determine a testator’s true intentions, did not apply because Ms. Daniels was not hired to draft the will in question, but rather to handle the separation from Ms. Graham.
In his decision, Justice Marc Smith sided with Ms. Butt. He noted that the central issues in the case were Mr. Kelly’s capacity and whether he was subjected to undue influence by Ms. Graham. He found that the timing of the events raised serious questions.
“There is no question that the Respondent’s reappearance in Mr. Kelly’s life, shortly before his death, coupled with allegations of lack of capacity and subsequent changes to various testamentary documents, raises some serious suspicions vis à vis Mr. Kelly’s susceptibility to undue influence,” Justice Smith wrote.
The judge acknowledged that Ms. Daniels was retained to deal with the separation from Ms. Graham, not to draft the final will. However, he found the two matters to be inextricably linked. He wrote that Mr. Kelly’s meeting with Ms. Daniels in May 2021 was “so closely related in time to the creation of testamentary documents in July and August 2021 under suspicious circumstances, that this solicitor client relationship becomes very relevant to the issues in this case.” On that basis, Justice Smith stated, “I am prepared to extend the wills exception to this case.”
He described the period of Ms. Daniels’ retainer as a “critical window” when Mr. Kelly was planning his financial affairs. At that time, his approach towards Ms. Graham was adversarial. Within a month, following his hospitalization and deterioration, his stance changed completely. He abandoned his claims against her and instead gave her full access to his finances and made her a significant beneficiary of his estate, all while he had reportedly been trying to reconcile with Ms. Butt.
“While the hospital records will speak to Mr. Kelly’s capacity, I find that Ms. Daniels’ records are the only existing legal documents, within a reasonable nexus of time… that are likely to provide some insight into his true intentions,” Justice Smith reasoned. He concluded that these records could shed light on Mr. Kelly’s plans for his estate, his support obligations, and his original dispute with Ms. Graham.
In a strong conclusion, the judge determined that the principle of privilege had to give way to the need for a full investigation. “In the circumstances of this case, the interest of justice demands the production of Ms. Daniels’ file. The integrity of the testamentary process outweighs the interests of maintaining the solicitor client privilege.”
The court granted Ms. Butt’s motion in its entirety. Ms. Daniels was ordered to deliver a complete copy of her file regarding Mr. Kelly within 30 days. The court also granted permission for Ms. Daniels to be examined under oath about the legal services she provided, noting it would not cause undue delay or unfairness. The parties were encouraged to reach an agreement on the costs of the motion.
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