Two cases addressing when negligence claims can be brought and how they must be pursued
Two Ontario Superior Court decisions from 2025 convey a significant message for estate practitioners: limitation periods and probate finality are playing a more prominent role than ever in shaping professional negligence exposure. Both cases, Tessaro v. Gora and Cooke Family Trust v. Dioguardi, are reviewed in the Top 10 Wills and Estates Cases of 2025 webinar series, hosted by eState Planner on January 8 and January 15. Register or access the recordings here.
For estate planning practitioners, these decisions provide meaningful comfort. For estate litigators, they raise caution flags about timing, framing, and procedural choices that can determine whether a claim survives at all.
Tessaro v. Gora: the “ultimate” limitation period really is ultimate
In Tessaro v. Gora, 2025 ONSC 198, the court confirmed that Ontario’s 15-year ultimate limitation period can extinguish a will-drafting negligence claim long before the will ever takes effect.
The case involved a will drafted in 1991 that was ambiguous about whether the daughters of a predeceased sister would inherit per stirpes, or whether only surviving sisters would share in the estate. The testator died in 2018. Two years later, the disappointed beneficiaries sued the drafting solicitor.
Justice Myers focused on a deceptively simple question under section 15 of the Limitations Act, 2002: what is the “act or omission on which the claim is based”? The plaintiffs argued that the problem first became apparent at the time of the testator's death. The court disagreed. The relevant “act” was the drafting and execution of the will in 1991.
The result was decisive. Because more than 15 years had passed, the claim was statute-barred, even though no one could have discovered the issue until decades later.
The court acknowledged the fairness concern for beneficiaries who may have “waited their whole lives” for an inheritance. But Justice Myers was clear: exceptions to the ultimate limitation period are for the Legislature, not the courts.
Why this matters in practice
Tessaro is not just a limitations case; it’s a risk-management case.
Because estate files often remain dormant for decades, Tessaro confirms that a lawyer’s exposure may expire while a client is still very much alive. That reality should influence:
- how often clients are encouraged to review their wills,
- the importance of clear communication with clients,
- how reporting letters frame the importance of updates, and
- how firms think about file retention and documentation.
Tools like eState Planner can help lawyers by generating wills and reporting letters while also improving client understanding through graphic summaries, reducing ambiguity long before limitation periods become relevant.
Cooke Family Trust v. Dioguardi: probate finality as a shield
If Tessaro addresses when a negligence claim can be brought, Cooke Family Trust v. Dioguardi, 2025 ONSC 370, focuses on how such claims must be pursued.
The will in Cooke was executed in 2018. It distributed the residue only if the testator’s spouse predeceased or died within 30 days, but said nothing about what actually happened: the spouse survived. The result was a partial intestacy.
Probate was applied for and granted in 2018, on notice to the beneficiaries. No objections were raised. But in 2020, the beneficiaries sued the drafting solicitor, alleging the will failed to reflect the testator’s true intentions.
On summary judgment, Justice Kaufman examined the legal effect of a grant of probate. Probate, the court emphasized, is a judgment in rem. It affirms due execution, testamentary capacity, knowledge and approval of contents, and the absence of mistake, subject to revocation or rectification.
Against that backdrop, the negligence claim could not stand. By asserting that the will failed to reflect testamentary intention, the plaintiffs were effectively contradicting the probate court’s earlier findings. The claim amounted to an impermissible collateral attack on the probate pronouncement.
The court described the plaintiffs’ position, that a testator would not intentionally create a partial intestacy, as “compelling.” But the problem was procedural. The proper remedy would have been to oppose probate and seek rectification at that stage. Having received notice and chosen not to object, the plaintiffs could not later reframe the issue as solicitor negligence.
Why this matters in practice
Cooke shows that probate strategy and solicitor liability strategy are now closely linked.
When alleged negligence is based on the claim that a will doesn't reflect the testator's intentions, plaintiffs may need to pursue estate remedies—such as rectification—at the probate stage. Otherwise, they risk losing the ability to bring a negligence claim later.
For estate litigators, this decision underscores the importance of early assessment and decisive action. For drafters, it reinforces the value of careful residue planning and clear records of intention.
Here too, eState Planner can significantly improve a firm's practice. Its planning scenario feature allows lawyers to create and compare different planning scenarios, helping clients visualize options and make informed decisions.
What wills and estates lawyers should take from 2025
Taken together, Tessaro and Cooke are double-edged swords. They offer welcome protection for will drafters through firm limitation rules and the finality of probate. At the same time, they require estate litigators to think strategically, and early, about how negligence claims are framed and when they are pursued.
These cases also remind us that many liability issues can be prevented at the drafting stage through better planning and clear documentation, areas where eState Planner excels. To modernize your practice and mitigate risks, visit e-stateplanner.com to book a demo or start a free 14-day trial.
The article was provided by Jordan Atin, Certified Specialist (Estates and Trust Law) and CEO at eState Planner.
