Can the lawyer who drafted a contested will be cross-examined as a witness in Ontario?
Yes. The lawyer who prepared a contested will is often one of the most important witnesses in an Ontario will dispute, since they can speak directly to what instructions the testator gave, whether the testator appeared to understand the document, and the circumstances surrounding its signing. Where the matter proceeds to a proof in solemn form hearing or trial, that lawyer can be examined for discovery beforehand and cross-examined as a witness at the hearing itself, just like any other witness with relevant, firsthand knowledge.
Because the lawyer's evidence often carries significant weight — they may be the only person, apart from the testator, who was present when instructions were given — their notes and recollection of the meeting are usually scrutinized closely by both sides. This is part of why a lawyer's contemporaneous file notes matter so much in capacity and undue influence disputes: they can support or undermine a party's position well before the lawyer ever takes the stand. If you're involved in a will dispute where the drafting lawyer's evidence will be important, discuss with your own lawyer, early on, how to obtain that file and prepare for the lawyer's evidence effectively.
Key takeaways
- The drafting lawyer can be examined for discovery and cross-examined as a trial witness.
- Their evidence about the testator's instructions and apparent understanding is often central to the case.
- Contemporaneous file notes from the will-preparation meeting carry significant weight in these disputes.
- Get advice early on obtaining the drafting file and preparing to use this evidence effectively.