On January 17, 2025 and February 10, 2025, my colleagues reviewed the decision of Tessaro v. Gora, 2025 ONSC 198. The recent decision of Cooke Family Trust et al v. Dioguardi et al, 2025 ONSC 370, similarly involves a negligence action brought against the drafting lawyer of a will.

This decision acts as a reminder of the effect of probate and when a negligence action can be in brought in light of same.

The Facts

The Deceased passed away on March 16, 2018, survived by his spouse, three children and two grandchildren.

Prior to his passing, the Deceased had retained a lawyer (the “Drafting Lawyer”) to update his will (the “Will”).

The Will appointed one of his sons as the estate trustee (the “Estate Trustee”) and outlined how the residue of the Deceased’s estate (the “Estate”) was to be distributed if his wife predeceased him or died within thirty days of him. Of relevance, two family trusts were to be established for the benefit of the Deceased’s grandchildren (the “Family Trusts”).

After the Deceased’s passing, it was discovered that the Will did not contemplate the Deceased’s spouse surviving him by more than thirty days, which is what happened.

Despite this, the Estate Trustee applied for a Certificate of Appointment of Estate Trustee, properly serving the Estate’s beneficiaries, and no objections were received. In turn, a Certificate of Appointment of Estate Trustee was issued (the “Certificate of Appointment”).

Almost two years later, on March 18, 2020, the Deceased’s son initiated an action in his capacity as litigation guardian for his children and trustee of the Family Trusts created for their benefit (the “Plaintiffs”), alleging that the Drafting Lawyer and his firm (the “Defendants”) were negligent in preparing the 2018 Will, resulting in a partial intestacy (the “Negligence Action”).

Specifically, the Plaintiffs alleged that due to the Defendants’ negligence, the Deceased’s grandchildren were deprived of the Family Trusts, which were intended to be bequeathed to them.

Over two years later, the Plaintiffs then filed an application for directions, seeking a declaration that the intestacy provisions of the Succession Law Reform Act govern the distribution of the Estate’s residue (the “Application for Directions”).

In response, the Defendants brought a motion for summary judgment.

The Parties’ Positions

The Defendants argued the Certificate of Appointment was a “a pronouncement by the Court affirming that the deceased knew and approved of the contents of the will, and that it is valid in all respects”. As a result, the Negligence Action was a collateral attack on an existing Court Order.

The Plaintiffs argued the Certificate of Appointment did not preclude the Negligence Action – they should be able to accept the 2018 Will for the purposes of estate administration while still being able to sue the Drafting Lawyer for negligence.

The Analysis

The Court first summarized the meaning of probate, the Court’s role in same and its legal effect once granted. Among other items, the Court noted:

• “Probate is the process by which a will’s validity is determined”
• “A will cannot be probated if the testator did not know and understand its contents”
• “When probate is granted, the court certifies that the specific writings constitute the deceased’s will and that the individuals named as estate trustees have the authority to act on behalf of the testator’s estate”
• “Subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the grantee as executor and the validity and contents of the will. This conclusiveness means that unless the grant is revoked, no one can challenge the identity of the executor, the testator’s capacity, or assert that the will was forged, as such actions would contravene the seal of the court”

The Decision

Justice Kaufman allowed the Defendants’ motion for summary judgment and dismissed the Negligence Action, finding that:

• The Negligence Action was a collateral attack on the Certificate of Appointment. The Plaintiffs’ argument that the Drafting Lawyer negligently failed to draft the Will in accordance with the Deceased’s testamentary instructions “directly contradict[ed] the court’s pronouncement regarding the will’s validity”;
• While the Plaintiffs provided compelling evidence and arguments that leaving a partial intestacy was not what the Deceased wanted, as they were directly challenging whether the Deceased knew and understood the Will’s contents, the appropriate course would have been to oppose probate and apply for the rectification of the Will. The Plaintiffs did neither;
• In the Application for Directions, the Plaintiffs’ position (that the intestacy provisions of the Succession Law Reform Act should govern) contradicted what they were alleging in the Negligence Action (that the Deceased intended to gift, among other things, the Family Trusts);
• If the Plaintiffs were successful, certain beneficiaries would receive greater benefits than if the Will had been rectified – and this windfall would be at the Drafting Lawyer’s expense; and
• While opposing probate would have delayed the administration of the Estate to the detriment of the beneficiaries, “such delays are the price to pay in order to ensure that a will is administered in accordance with the testator’s true wishes.”

Thanks for reading!

Megan Zanette