While applying for a certificate of appointment of estate trustee is often part of the estate administration process, it is not simply an administrative task. The Ontario Court of Appeal’s recent decision in Elizabeth Casey Cooke Family Trust v. Dioguardi, 2026 ONCA 85, is a stark reminder that a grant of probate – even in common form – is a judicial pronouncement on a will’s validity and operative effect. On this basis, the Court of Appeal affirmed that a solicitor’s negligence claim which attacked the validity of a probated will – thereby undermining probate – constituted an abuse of process.
Background
In this case, the testator’s final will contained a drafting error which resulted in a partial intestacy. Despite the testator’s intention to benefit his grandchildren through his will, they were not entitled to share in his estate due to the error. Following his death, the testator’s sons raised the error with the drafting solicitor, but the solicitor was adamant that the will accurately reflected the testator’s intentions.
A certificate of appointment of estate trustee with a will was obtained. Despite the drafting error, no notice of objection was filed in response to the application. Thereafter, once probate had been granted, one of the testator’s sons commenced a solicitor’s negligence action on behalf of the minor grandchildren. The drafting solicitor moved for summary judgment on the basis that the litigation constituted an abuse of process. The Superior Court of Justice agreed, holding that the action amounted to an impermissible collateral attack on the probate process, and that the proper course would have been to file a notice of objection in response to the probate application and seek rectification of the testator’s will. To learn more about the motion judge’s decision, see our previous blog post: Probate: A Clear Defence to Collateral Attacks.
On appeal, the motion judge’s decision was upheld on the following bases:
Rectification Was Available at Probate
First, the appellants argued that evidence from the drafting lawyer “is a prerequisite” to rectification, and that because the drafting lawyer would not admit to the drafting error, they would not have been able to obtain this relief. In rejecting this argument, Justice Paciocco, writing on behalf of the panel, drew a critical distinction between what evidence is admissible to obtain rectification when a court sits as a court of probate as compared to when it sits as a court of construction.
When the court sits as a court of probate, direct evidence of the testator’s intent is admissible to establish what documents constitute the testator’s last will. Justice Paciocco explained that such evidence may also be used to establish a drafting error in the will, in which case evidence from the drafting solicitor may not be needed to obtain rectification. When sitting as a court of construction, on the other hand, direct evidence of the testator’s intent is inadmissible, meaning that evidence from the drafting lawyer is often needed to obtain this relief. As the authorities that the appellants relied upon were determined by the court sitting as a court of construction, Justice Paciocco noted that they “should not be read as relevant to probate.”
Justice Paciocco also noted that, in this case, there was “ample evidence on the record” of the testator’s intent that could have been used during the certificate process, instead of evidence from the drafting solicitor, to determine whether the testator’s final will should have been rectified.
The Negligence Action Was an Abuse of Process
The Court of Appeal also affirmed that the negligence action was properly dismissed as an abuse of process, but clarified that it technically was not a “collateral attack.” Citing Toronto (City) v CUPE, Local 79, 2003 SCC 63, Justice Paciocco explained that a collateral attack occurs “if a party seeks to overturn a court order in proceedings other than those which explicitly allow the first order to be challenged and reversed[.]” Here, since no step had been taken to set aside the certificate of appointment, the negligence action technically was not a collateral attack.
Nevertheless, it was not necessary to overturn the motion judge’s decision because his reasoning demonstrated that he had properly applied the broader abuse of process doctrine. Recognizing that the error in the will could have been remedied during the probate process, but was not, the Court of Appeal held that “[t]he Negligence Action was … an abusive attempt by the appellants to relitigate factual findings already resolved by the Superior Court, and to advance issues that could have been determined in prior proceedings, namely the certificate process[.]”
The Motion Judge’s Decision was Entitled to Deference on Appeal
Lastly, the appellants argued that it would be unfair to foreclose litigation that would examine whether the drafting lawyer should be held accountable for a drafting error that frustrated the testator’s intentions. This ground of appeal was also dismissed. The Court of Appeal affirmed that the motion judge’s decision to dismiss the action was entitled to deference, and that he had contemplated relevant fairness concerns before dismissing the action. For example, the motion judge had noted that if the action were successful, some beneficiaries would receive greater benefits than they would have if the will had been drafted in accordance with the testator’s instructions.
The Court of Appeal also recognized that “[t]here are pressing public policy considerations in estate law for applying the abuse of process doctrine to prevent belated attacks” on probated wills, when a party chooses to bypass remedies that “could have been and should have been undertaken during the certificate process.”
Practical Implications
The Court of Appeal’s decision is noteworthy in confirming the proper procedure to follow when probating a will that contains drafting errors. If an application for a certificate of appointment of estate trustee is submitted and a drafting error is identified, a notice of objection ought to be filed and rectification should be sought during the certificate process, even if the drafting solicitor denies the drafting error.
Waiting to pursue a negligence claim after a certificate has been issued is not advisable – a later action may be barred as an abuse of process if an alleged error in the will could have been rectified at the probate stage.
A Caveat: Not All Negligence Claims Will Be Barred
It also merits noting that not all negligence claims arising from a drafting error will be barred once a certificate of appointment of estate trustee has been issued. The Court of Appeal was careful to note that this relief will only be unavailable where a drafting error could have been rectified during the certificate process. On a related point, the court also noted that if a drafting solicitor were to negligently refuse to cooperate in rectifying their drafting error, it may be possible to bring a negligence claim against the solicitor.
Thank you for reading, and have a great rest of your day,
Suzana.