Executor Ordered to Produce Deceased’s Medical Records

Executor Ordered to Produce Deceased's Medical Records

An Alberta case Petrowski v Petrowski 2005 ABQB ordered the executor to produce medical records of the deceased pointing to her obvious conflict of interest in having the exclusive authority in relation to a doctor’s confidentiality when there was reason to question the testator’s mental capacity at the time of various transfers.

The decision was referred to in Armstrong v Katanko 2019 BCSC 1519 with seeming approval, but distinguishing it on the basis that Petrowski was for production of medical records and Kotanko was for lawyer-client records.

It is often crucial to obtain a complete set of the deceased’s medical records when alleging lack of mental capacity, undue influence, unconscionable contract and similar remedies in the estate litigation.

In Petrowski the deceased transferred property to his daughter, the plaintiff’s sister, during his lifetime. The sister is also the executor of his estate.

The plaintiff sought an order that he be allowed unfettered access to medical information about his father, including the ability to interview the doctors. The sister argued that as executor, she had exclusive authority in relation to a doctor’s duty of confidentiality.

The court noted the sister’s obvious conflict of interest:

“ It seems to be manifestly unfair that Joan, because she is named executrix in a will, the validity of which is also challenged, should have unfettered access to medical information concerning the deceased, and able to deny her brother the same unfettered access.”

Further, if an executrix has exclusive authority in relation to a doctor’s duty of confidentiality to the deceased, it would, in my view, constitute an abuse of that authority for the executrix, to use her authority to advance her own personal position in litigation, as distinct from the position of the estate.

If the inter vivos land transfers had been made to a third-party, and there was reason to question the transferor’s mental capacity at the time of the transfers, it could be the executrix’s duty to challenge the transfers for the benefit of the estate. In that sense the executor’s interest ias inter vivos transferee of the deceased’s land may conflict with her duties as executrix.

Role of Executor During Litigation

Role of Executor During Litigation

The role of an executor during litigation, particularly wills variation litigation, is to continue to preserve the assets of the estate, pay the debts and distribute the balance to the beneficiaries entitled under the will, or in accordance with any order made under the wills variation act.

The executor must remain neutral throughout the wills variation proceedings, and cannot defend the wills variation claim on its merits.

Executor neutrality in the context of a wills variation out action takes the form of the executor’s role in that litigation being limited to delivering letters probate and financial documents evidencing estate value and providing assistance as requested.

The executor is to leave the balance of the dispute for the adversarial parties to sort out and is supposed to be indifferent about whether the will is varied or upheld and how the estate ends up being divided.

Quirico v Pepper Estate (1999) BCJ 2229

Proprietary Estoppel (SCC)

Proprietary Estoppel (SCC)

In a significant win for disinherited individuals who were promised to inherit an asset, the Supreme Court of Canada in Cowper-Smith-Smith v. Morgan , 2017 SCC 61 reversed the BC Court of Appeal and allowed a claim for proprietary estoppel.


The trial judge had found that a non-owner of property, who gave assurances that were relied upon by the plaintiff, with respect to her future intentions, based on the assumption that she would inherit from her mother, the owner, was obligated I equity to carry out the effect of that promise.
The deceased mother transferred her house into joint tenancy with her daughter in 2001.
In 2002. The mother made a will, leaving her estate equally to her three children.

The mother’s investment accounts over several years were transferred into joint names with the daughter.

A declaration of trust for the house in bank accounts was signed in 2001 that stated that the daughter would be entitled absolutely to those assets upon the death of the mother.

Despite the fact that the trust declaration in joint ownership, if valid assured that the estate would be virtually devoid of assets, the mother also executed a new will that appointed the sister as executor and provided that the estate would be divided equally among the three children.

The defendant sister told her siblings that the house was put into her name only, so that she could assist in their mother’s affairs and that the asset would all eventually go to her mother’s estate.

The defendant daughter promised to transfer a one third share in the house in order to lure him back to Canada in order to assist his sister in caring for his mother.

The trial judge allowed the claim of the brother on the basis that he relied upon the promise made by his sister when he agreed to return to Canada to take care of his mother when the sister reneged on her promise to transfer to him her one third of the house, even though she did not own the house when she promised to transfer the brother one third of it.

The Court of Appeal reversed the trial judge decision on the basis that the sister did not own the property when she promised to transfer it to her brother.
The Supreme Court of Canada reversed the appeal court and allowed the claim of the brother to succeed on the basis of proprietary estoppel.



To establish proprietary estoppel, one must first establish an equity of the kind that proprietary estoppel protects.

An equity arises when:

  1. A representation or assurances is made to the claimant, on the basis of which the claimant expects that he or she will enjoy some right or benefit over property;
  2. The claimant relies on that expectation by doing or refraining from doing something and his or her reliance is reasonable in all of the circumstances, and;
  3. The claimant suffers a detriment a s a result of his or her reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his or her word and insist on his or her strict legal rights.

When the party responsible for the representation or assurance possesses an interest in the property sufficient to fulfill the claimant’s expectation, proprietary estoppel attaches to that interest, and protects the equity by making the representation or assurance binding.

It is not necessary that the party responsible for the expectation own an interest in the property at the time of the claimant’s reliance-when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attached to that interest and protect the equity.

Whether a claimant’s reliance was reasonable in the circumstances, is a question of mixed law and fact. A trial judge’s determination of this point, is absent palpable and overriding error, entitled to deference.

When a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances, an appellate court should not interfere unless the trial judge’s decision evinces an error in principle, or is plainly wrong.

A claimant to establish is the need for proprietary estoppel is entitled only to the minimum relief necessary to satisfy the equity in his or her favor, and cannot obtain more than he or she expected.

Further, there must be a proportionality between the remedy, and the detriment.

Courts of equity must strike a balance between vindicating of the claimant’s subjective expectations and correcting that detriment.

Here, both the brother and a sister had clearly understood for well over a decade that their mother’s estate, including the family home, would be divided equally between her three children upon her death.

It was a sufficiently certain that the sister would inherit a one third interest in the property for her assurance to be taken seriously as one in which the brother could rely.

An equity arose in favor of the brother when he reasonably relied to his detriment on the expectation that he would be able to acquire his mother’s one third interest in the family home.

The equity could not have been protected by proprietary estoppel at the time it arose, because the sister did not then own an interest in the property.
However, proprietary estoppel did attach to the sisters interest as soon as she obtained it from the estate.

The sister as executor, could be ordered to transfer a one third interest in the property to each of the estate beneficiaries, so that her promise to her mother may be fulfilled.