In the Estate of William McGarry, deceased[1], 2025 ONSC 3299 addresses the appointment of an Estate Trustee During Litigation (“ETDL”) and related procedural directions in the context of highly suspicious circumstances surrounding a purported will and irrevocable life insurance beneficiary designations.

The case underscores the Court’s supervisory and inquisitorial jurisdiction in estate matters, particularly where allegations of diminished capacity, undue influence, and potential conflicts of interest raise serious concerns about the validity of estate planning instruments.

Background

Brian William McGarry (the “Deceased”) died on January 27, 2024, leaving behind three children. The Deceased had experienced cognitive decline as early as 2012, with a neuropsychological assessment in 2014 noting signs consistent with Alzheimer’s disease.[2]

Despite these concerns, the Deceased severed ties with his original counsel and retained Daniel and George Nasrallahs and their law office, Nasrallah Law Offices P.C. (the “Nasrallahs”). A contentious solicitor-client relationship followed, including litigation for unpaid fees. Ultimately, the Deceased admitted to all allegations contained in their claim in 2015.[3]

Just days later, in October 2016, the Deceased executed a will naming Daniel and Georges Nassrallah as sole Executors and Trustees.[4] Three days later, he irrevocably altered his one-million-dollar life insurance policy, designating 45% each to the Nassrallahs (described as “Lawyer/Friend”), with only 10% to his daughter, the Applicant (the “Applicant”).[5]

Following the Deceased’s death, Applicant discovered two prior wills executed by the Deceased dated January 21, 2011, and May 14, 2012.[6] Thereafter, the Nasrallahs renounced their appointments.[7]

The Applicant, supported by her mother and siblings as beneficiaries in at least one of the Deceased’s wills, commenced proceedings to challenge both the 2016 Will and the insurance designation, and sought the appointment of an ETDL to administer the estate in the interim.[8]

Issues

The Court considered three issues[9]:

1. Should the Application be dismissed?
2. If not, who should be appointed as ETDL?
3. What directions should be given for the administration of the estate?

Analysis

1. Dismissal of the Application

The Nassrallahs argued that the Application should be dismissed due to procedural irregularities, including the absence of a Notice of Objection, the Applicant’s unwillingness to propound the 2016 Will, and the absence of an existing estate trustee.[10]

Justice Smith rejected these submissions.

First, the Court found the circumstances highly suspicious, requiring careful exercise of its inquisitorial jurisdiction over estate matters.[11]

Second, the Applicant reasonably sought directions on the 2016 Will and life insurance designations before being permanently appointed as Estate Trustee.[12]

Third, the Application arose because the Nassrallahs renounced as executors and failed to probate the 2016 Will, preventing a normal will challenge process.[13]

Fourth, relying on Neuberger v. York[14], 2016 ONCA 191 and Seepa v. Seepa[15], 2017 ONSC 5368 the Court reaffirmed its broad discretion under Rules 75.01 and 75.06 to require proof of testamentary instruments where suspicious circumstances exist, finding that the Applicant met the evidentiary threshold through evidence of questionable transactions involving the 2016 Will and life insurance changes benefitting the Deceased’s lawyers. [16]

Fifth, the Court held that appointing an ETDL was not premature, as section 28 of the Estates Act expressly permits such appointments pending will litigation.[17]

Sixth, given the concerns surrounding the Deceased’s health, capacity, and dealings with the Nassrallahs, the Applicant’s refusal to probate the 2016 Will was not only reasonable but necessary to ensure judicial oversight.[18]

Lastly, the Court found no authority supporting dismissal and confirmed that proceeding under Rules 75.01 and 75.06 was the proper mechanism to determine the validity of the estate instruments.[19]

2. Appointment of an ETDL

The Applicant sought to be appointed ETDL herself, or alternatively to have neutral third parties appointed.[20]

The court considered the factors set out in Zarrin-Mehr v. Shokra,i[21] 2024 ONSC 6319 to consider in appointing an ETDL[22]:

• whether a trustee may be a witness in the litigation; (ii) potential for conflict of interest;
• conflict between the interest of the trustees and/or beneficiaries;
• hostility between the trustee and/or beneficiaries;
• lack of communication between the parties; and
• evidence of settlement discussions that exclude some of the parties

The Court found that while the Applicant had the support of her family, the conflict and hostility between her and the Nassrallahs made her unsuitable.

Given the suspicious context, allegations of undue influence, and the need for impartiality, the Court appointed independent lawyers Ian Warren and Dahlia Aeta of Warren Camacho LLP as ETDLs.[23]

3. Directions

The Court approved the Applicant’s draft Order for Directions, subject to amendments reflecting the ETDL appointment.[24] It also directed that negotiations over the production of legal files involving the Nasrallahs be finalized within 30 days, failing which the parties may return before the Court.[25]

Disposition

Justice Smith ordered that[26]:

• The Nassrallahs’ request to dismiss the Application was refused.
• Ian Warren and Dahlia Aeta of Warren Camacho LLP were appointed ETDLs.
• The Order for Directions was approved with specified amendments, and costs were reserved to the judge ultimately hearing the matter.

Key Takeaways

This decision highlights several important points for estates practitioners:

• The Court will exercise its inquisitorial jurisdiction where estate planning instruments raise red flags about capacity and undue influence.
• Procedural irregularities will not bar relief where fairness demands Court supervision.
• The appointment of an ETDL requires careful balancing of neutrality, potential conflicts, and family dynamics.
• Independent, professional ETDL appointments may be necessary to preserve trust in the administration process.

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[1] In the Estate of William McGarry, deceased, 2025 ONSC 3299

[2] Ibid at paras 9-10.

[3] Ibid at para 11.

[4] Ibid at para 12.

[5] Ibid at para 13.

[6] Ibid at para 14.

[7] Ibid at para 15.

[8] Ibid at paras 16-17.

[9] Ibid at para 18.

[10] Ibid at para 21.

[11] Ibid at para 23

[12] Ibid at para 24.

[13] Ibid at para 25.

[14] Neuberger v. York, 2016 ONCA 191.

[15] Seepa v. Seepa, 2017 ONSC 5368.

[16] Supra, note 1 at paras 26-28.

[17] Ibid at para 29.

[18] Ibid at para 30.

[19] Ibid at para 31.

[20] Ibid at para 32.

[21] Zarrin-Mehr v. Shokrai, 2024 ONSC 6319.

[22] Supra, note 1 at para 34.

[23] Ibid at paras 35-37.

[24] Ibid at paras 38-39.

[25] Ibid at para 40.

[26] Ibid at para 42.