Ruling finds parties missed opportunity to rectify will at probate
The Ontario Court of Appeal has affirmed a summary judgment dismissing an action alleging negligence against a solicitor who assisted in preparing a Jan. 9, 2018 will with terms that appeared to contradict the testator’s previous written instructions.
In Elizabeth Casey Cooke Family Trust v. Dioguardi, 2026 ONCA 85, the testator apparently included instructions in his notations on his previous will and in handwritten notes sent to the solicitor. These prior instructions sought the allocation of estate residue to:
- his three children (James, Jonathan, and Alan)
- his two grandchildren (Elizabeth and Charlie), in trust
The 2018 will ultimately resulted in a partial intestacy, contrary to the previous instructions. The 2018 will made the allocation conditional on the testator’s wife predeceasing him or dying within 30 days of his death.
Unlike the prior will, which provided an alternative disposition if the wife survived the testator by 30 days, the 2018 will included no alternative provision for the estate residue if that condition did not occur.
On Mar. 16, 2018, the testator passed away. Within days of his death, Alan – the father of Elizabeth and Charlie, their litigation guardian, and the trustee of their trusts – and James brought up the alleged error to the solicitor, who responded that the will accurately reflected the testator’s intentions.
The wife survived the testator for six years following his death. Since the condition for the gifts did not transpire, the 2018 will’s primary distribution scheme became inapplicable.
Thus, the intestate succession regime in Ontario’s Succession Law Reform Act, 1990 (SLRA) governed the majority of the testator’s estate distribution. Under this regime, the grandchildren had no entitlement to his estate or access to the trust funds.
In April 2018, James applied for a certificate of appointment of the estate trustee with a will, pursuant to the terms of the 2018 will and r. 74 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In May 2018, the Ontario Superior Court of Justice issued the certificate.
In March 2020, on Elizabeth’s and Charlie’s behalf, Alan filed an action alleging negligence against the solicitor. Denying that he acted negligently, he moved for summary judgment dismissing the negligence action as abusive of process.
In January 2025, Justice Alexandre Kaufman of the Superior Court granted the motion and summarily dismissed the negligence action. The motion judge considered the action a collateral attack on the certificate and thus an abuse of process.
Separately, in October 2022, Alan applied for directions and a declaration that ss. 45 and 46 of the SLRA governed the distribution of the estate residue. The appellants appealed the January 2025 summary judgment.
Summary dismissal upheld
The Court of Appeal for Ontario dismissed the appeal. The appeal court mentioned that using the previous will as a precedent, without careful editing, likely led to the inclusion of the conditional text in the 2018 will.
The appeal court noted that the certificate of appointment of an estate trustee with a will replaced the former probate application. The appeal court added that no one objected to the issuance of the certificate or applied to revoke the certificate, with both procedures available under r. 75 of the Rules of Civil Procedure.
First, the appeal court ruled that the appellants had the opportunity to rectify the will during the certificate process, but they failed to do so. The appeal court pointed out that the probate court had the power to rectify the will before issuing the certificate.
The appeal court saw ample evidence to assess the testator’s true intentions regarding the residual distribution scheme, even without the solicitor’s cooperation. The appeal court held that this evidence would have been admissible in the probate court and available to the appellants if they wished to assert an error to seek rectification of the will.
Second, the appeal court found the motion judge entitled to summarily dismiss the negligence action and consider it abusive of process.
Third, the appeal court deferred to the judge’s discretionary decision to dismiss the negligence action. The appeal court saw no basis to interfere with the judge’s assessment, including his decision to dismiss the underlying action.
