Executive Summary: Key Legal and Evidentiary Issues

• Court scrutinized suspicious circumstances surrounding the execution of the 2016 Will and changes to a $1M life insurance policy.

• Allegations of cognitive decline and undue influence raised serious doubts about the deceased’s testamentary capacity.

• The original executors and major beneficiaries, who were also lawyers, had renounced their appointments, prompting the need for an ETDL.

• Applicant, a daughter of the deceased, sought directions and an interim trustee role amid a potential will challenge.

• Court examined whether it was premature to appoint an ETDL in the absence of a formal probate application.

• A neutral third-party trustee was appointed to avoid conflicts of interest and ensure fairness during litigation.

Facts of the case

Brian William McGarry died on January 27, 2024. He had three children, including the applicant, Sheetza McGarry. The deceased had separated from his spouse, Joan Sun, but was not legally divorced. In the years prior to his death, there were allegations that Mr. McGarry experienced cognitive decline consistent with Alzheimer’s disease. This decline was documented by a neuropsychological assessment in 2014, after which he terminated his retainer with his then-lawyers and retained Daniel and Georges Nassrallah of Nasrallah Law Offices.

Shortly after conceding a legal dispute with the Nassrallahs in 2015 over unpaid legal fees, the deceased executed a new will on October 25, 2016. This 2016 Will named the Nassrallah brothers as sole executors and estate trustees. Just days later, he altered a $1 million life insurance policy to benefit the Nassrallahs (45% each), with only 10% going to his daughter, the applicant.

After his death, the applicant discovered two prior wills dated 2011 and 2012, which named different beneficiaries. In June 2024, the Nassrallah brothers renounced their roles as executors. The applicant then brought a court application in January 2025 seeking appointment as an Estate Trustee During Litigation (ETDL) and court directions regarding the validity of the 2016 Will and insurance changes. The Nassrallahs opposed the application, arguing procedural defects and that the applicant had not taken the proper steps to challenge the will.

Court's decision and reasoning

The court rejected the Nassrallahs’ position and declined to dismiss the application. It found the factual circumstances—including the deceased's declining mental health, the legal and financial relationship with the Nassrallahs, and their unexpected designation as major beneficiaries—to be sufficiently suspicious to warrant a full examination. The court ruled that the applicant had met the minimal evidentiary threshold to bring the matter forward under Rules 75.01 and 75.06 of Ontario’s Rules of Civil Procedure.

Although the applicant had the support of her family and a legitimate interest in the estate, the court declined to appoint her as ETDL due to the potential appearance of conflict. Instead, it appointed two neutral third parties, Ian Warren and Dahlia Aeta of Warren Camacho LLP, citing their expertise and impartiality as necessary to ensure fairness in the ongoing proceedings.

The court also approved the draft order for directions proposed by the applicant, subject to amendments reflecting the appointment of the new trustees. Additionally, it allowed a 30-day window for the Nassrallahs to negotiate terms related to the production of legal files. Costs were reserved to the judge hearing the final resolution of the matter.

In summary, the court allowed the estate dispute to move forward, appointed neutral interim trustees, and provided procedural clarity to ensure the fair resolution of questions concerning the deceased’s final wishes.