R. v. Konashewych, 2026 ONCA 497, is a criminal decision, but one that estate practitioners should read closely. It is a rare, judicially documented example of a fabricated will successfully passing through the Ontario probate system, resulting in the transfer of the entire estate of a vulnerable adult to a fraudulent beneficiary. The decision sheds light on the practical vulnerabilities of the probate process and offers a number of useful lessons for estate litigators.
Background
The deceased had been under the guardianship of the Office of the Public Guardian and Trustee (“OPGT”) since October 2008. On June 20, 2017, the Senior Client Representative assigned to his file learned of his death. He had no known will and no known family apart from a half-brother, with whom he had not been in contact for years.
Six days after learning of the deceased’s death, the Senior Client Representative received a voicemail from a man using an alias, whom she immediately recognized as her romantic partner, a Toronto police officer. He claimed to possess a will naming him as executor, estate trustee, and sole beneficiary. Despite the obvious conflict, she did not disclose the relationship and continued to be involved in the file. She later swore an affidavit, as a third party purportedly unconnected to the application, attesting to the authenticity of the deceased’s signature on the will.
The probate application was filed on April 20, 2018. After court officials requested a third-party affidavit on June 8, 2018, the affidavit was provided on June 15, 2018. The Certificate of Appointment of Estate Trustee issued on July 4, 2018, and $834,351.55 was eventually transferred into the applicant’s bank account.
The fraud was uncovered by chance. In late 2018 to early 2019, correspondence addressed to the estate in the care of the applicant was inadvertently opened by his then-partner, including a RIF statement and a solicitor’s letter and statement of account that referenced the Senior Client Representative. Using that correspondence, her family law lawyer obtained the court file, revealing that the applicant had inherited a significant sum. She reported her suspicions to the police in March 2019, leading to an investigation and the arrests of both appellants in December 2019. A jury convicted both of fraud, and the Senior Client Representative was also convicted of breach of trust by a public officer. Each received a global sentence of seven years, with a concurrent five-year sentence for breach of trust.
Estate-Focused Observations from the Decision
The probate process proceeded on the strength of sworn materials. The probate application progressed through the ordinary steps of the probate process. When court officials advised that a third-party affidavit attesting to the deceased’s signature was required, that affidavit was provided, the Certificate of Appointment issued, and the estate assets were transferred to the applicant.
Third-party signature attestation. The affidavit attesting to the deceased’s signature was sworn by an individual described in the affidavit as a third party unconnected to the application. That individual was, in fact, in an undisclosed romantic relationship with the applicant. The applicant’s efforts to conceal that relationship, together with the actions of the third-party affiant, formed part of the circumstantial record on which the jury was entitled to reach its verdict.
Fabrication established without expert handwriting evidence. The appellants argued that the absence of expert evidence about the authenticity of the signatures on the will was a critical gap in the Crown’s case. The Court of Appeal rejected that submission. The Crown’s position was that the will was falsified because there was “not a single shred of evidence” that either of the witnesses to the will ever existed. There were no Canadian passport records for either of the witnesses from 2001 onwards, and no social insurance numbers for the witnesses in Service Canada’s Social Insurance Registry. Despite the deceased having been in the OPGT’s care since 2008, no one at the OPGT was aware of the will until the applicant came forward with it nine years later. On this evidentiary record, the Court of Appeal held that expert evidence was not required as a matter of law to prove fabrication.
Concealment as after-the-fact conduct evidence. The Court of Appeal upheld the trial judge’s decision to admit evidence of the appellants’ efforts to conceal their personal relationship. This evidence was relevant, in addition to being admissible as narrative, to the live issue of whether the appellants knew that the will was fabricated. It fell within the category of after-the-fact conduct, which is admissible where it is relevant to a live, material issue, does not offend another exclusionary rule, and where its probative value exceeds its prejudicial effect. Each individual act of concealment, taken alone, would not have much probative value on the issue of knowledge of fabrication, but when considered all together this evidence had considerable probative value on that issue. The Court held that logic, common sense, and human experience supported the inference that the acts of concealment were disproportionate to the mere concealment of an affair, and could reasonably be considered more consistent with concealing criminality. The Court also held that the trial judge’s limiting instructions adequately addressed the risk of moral or reasoning prejudice.
The role of guardianship records. The OPGT had been involved with the deceased since 2008, and during that period had no knowledge of any will. The will only came to the OPGT’s attention when the applicant surfaced with it after the deceased’s death. The absence of any institutional record or awareness of the will formed part of the circumstantial evidence considered on the issue of fabrication.
Conclusion
Konashewych illustrates how a fabricated will can move through the probate system on the strength of sworn materials, particularly where the true relationships behind the application are concealed. For estate litigators, the case reinforces the importance of critically examining the provenance of late-emerging wills, verifying the independence of third-party attesters, and investigating the existence of subscribing witnesses. It also serves as a reminder that guardianship records can be a valuable source of evidence when the authenticity of a will is later called into question.
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