Cooke v. Dioguardi,[1] involved a summary judgment motion where the central issue was whether a negligence action against a drafting solicitor could proceed where the court had already granted probate through a Certificate of Appointment of Estate Trustee with a Will.
Background
James Cooke (“James”) passed away on March 16, 2018. He was survived by his wife, Patricia Cooke (“Patricia”) who at the time suffered from dementia. She would survive James by six years, passing away in May 2024.[2]
James and Patricia had three children, namely: James Cooke (“James Jr.”), Alan Cooke (“Alan”) and Jonathan Cooke (“Jonathan”). They also had two grandchildren, Alan’s children, Elizabeth and Charlie.[3]
In 2018, James retained the defendant, solicitor Paul Dioguardi (“Mr. Dioguardi”) to prepare a Last Will and Testament. James subsequently executed a 2018 Will (the “2018 Will”).
The 2018 Will appointed James Jr. as the Estate Trustee. The dispositive provisions of the 2018 Will contemplated how James’ Estate would be distributed in the event Patricia predeceased him or died within 30 days of him. In such a case, the residue would be distributed directly to his sons James Jr., Alan and Jonathan. It also provided that part of the residue would flow into two testamentary trusts established for Elizabeth and Charlie.[4]
Crucially, the 2018 Will did not account for Patricia surviving James by more than 30 days, leading to a partial intestacy of the residue.[5]
On April 24, 2018, James Jr. applied for probate, on notice to all of the beneficiaries. On May 16, 2018, the court issued James Jr. with a Certificate of Appointment of Estate Trustee with a Will (“CAETW”).[6]
In March 2020, Alan commenced a negligence action against Mr. Dioguardi, claiming the 2018 Will’s drafting deprived his children Elizabeth and Charlie of their intended inheritance through the testamentary trusts.[7]
In October 2022, Alan commenced an application for directions, seeking the court’s declaration that the intestacy provisions outlined in sections 45 and 46 of the Succession Law Reform Act, governed the distribution of the Estate’s residue.[8]
Issue
Alan contended that the CAETW issued to James Jr. did not preclude him from advancing the negligence action. Mr. Dioguardi, meanwhile, contended that the CAETW was a court pronouncement as to the validity of the 2018 Will and Alan’s action therefore constituted a ‘collateral attack’ on the court’s order.
To determine the issue at hand, the Honourable Justice Kaufman elucidated the key principles governing probate in Ontario.
Governing Law – the legal effect of probate
The court’s jurisdiction in matters of probate is inquisitorial. Their function and purpose is to ascertain which documents constitute the testator’s last will and testament.[9]
As such, a CAETW is a court pronouncement affirming the validity of a Will, and that:
- the Will was executed in accordance with the statutory requirements;
- the testator knew and approved of the Will’s contents;
- the Will was not affected by mistake; and
- the testator had the requisite testamentary capacity.[10]
The court highlighted that subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the estate trustee and the validity and contents of the Will. If the application for probate is uncontested and the Last Will and Testament appears in good order, some of the matters required to be proved will be presumed.[11]
For the purposes of the negligence action, the court clarified that the grant of probate is binding, and operates in rem, affecting third-party rights.[12]
Analysis
Ultimately, the court found that advancing the negligence action constituted a collateral attack on the grant of probate and contradicted its pronouncement regarding the 2018 Will’s validity.[13]
Alan argued that there is no good or sensible reason for a person preparing a Will to intentionally leave a partial intestacy, and that a competent lawyer would advise against such an outcome. While the court found these submissions compelling, it noted that Alan’s course of action should have been to oppose probate and apply for rectification of the 2018 Will. In this regard, he was on notice to James Jr.’s application for probate but did not file a Notice of Objection.[14]
The court reasoned that if the negligence action would be allowed to occur, it would require the court to make findings of fact that directly contradict findings of fact made in a previous proceeding, thereby undermining the credibility of the judicial process. In this regard, it cited the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc.,[15] for the judicial policy favouring finality.[16]
Concluding Comments
The court allowed Mr. Dioguardi’s motion for summary judgment, awarded him his costs, and dismissed Alan’s negligence action.
The decision in Cooke v. Dioguardi contends that a negligence action against a drafting solicitor is effectively barred following a grant of probate. For this reason, it will be interesting to watch the development of cases post Cooke as to how Ontario courts will approach this issue and the inter-related issues of limitation periods, and the principle of discoverability.
—
[1] Cooke Family Trust v. DioGuardi et al., 2025 ONSC 370 (“Cooke”).
[2] Cooke at paras 2 and 3.
[3] Cooke at para 4.
[4] Cooke at para 5.
[5] Cooke at para 6.
[6] Cooke at paras 7 and 8.
[7] Cooke at para 9.
[8] Cooke at para 10.
[9] Cooke at para 18.
[10] Cooke at para 17.
[11] Cooke at 19; citing WEL Partners’ Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, Adam Parachin, Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021) at pg. 205.
[12] Cooke at para 18.
[13] Cooke at para 23.
[14] Cooke at paras 27 – 28.
[15] Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 20.
[16] Cooke at para 30.
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Written by: Oliver O'Brien
Posted on: November 4, 2025
Categories: Commentary, WEL Newsletter
Cooke v. Dioguardi,[1] involved a summary judgment motion where the central issue was whether a negligence action against a drafting solicitor could proceed where the court had already granted probate through a Certificate of Appointment of Estate Trustee with a Will.
Background
James Cooke (“James”) passed away on March 16, 2018. He was survived by his wife, Patricia Cooke (“Patricia”) who at the time suffered from dementia. She would survive James by six years, passing away in May 2024.[2]
James and Patricia had three children, namely: James Cooke (“James Jr.”), Alan Cooke (“Alan”) and Jonathan Cooke (“Jonathan”). They also had two grandchildren, Alan’s children, Elizabeth and Charlie.[3]
In 2018, James retained the defendant, solicitor Paul Dioguardi (“Mr. Dioguardi”) to prepare a Last Will and Testament. James subsequently executed a 2018 Will (the “2018 Will”).
The 2018 Will appointed James Jr. as the Estate Trustee. The dispositive provisions of the 2018 Will contemplated how James’ Estate would be distributed in the event Patricia predeceased him or died within 30 days of him. In such a case, the residue would be distributed directly to his sons James Jr., Alan and Jonathan. It also provided that part of the residue would flow into two testamentary trusts established for Elizabeth and Charlie.[4]
Crucially, the 2018 Will did not account for Patricia surviving James by more than 30 days, leading to a partial intestacy of the residue.[5]
On April 24, 2018, James Jr. applied for probate, on notice to all of the beneficiaries. On May 16, 2018, the court issued James Jr. with a Certificate of Appointment of Estate Trustee with a Will (“CAETW”).[6]
In March 2020, Alan commenced a negligence action against Mr. Dioguardi, claiming the 2018 Will’s drafting deprived his children Elizabeth and Charlie of their intended inheritance through the testamentary trusts.[7]
In October 2022, Alan commenced an application for directions, seeking the court’s declaration that the intestacy provisions outlined in sections 45 and 46 of the Succession Law Reform Act, governed the distribution of the Estate’s residue.[8]
Issue
Alan contended that the CAETW issued to James Jr. did not preclude him from advancing the negligence action. Mr. Dioguardi, meanwhile, contended that the CAETW was a court pronouncement as to the validity of the 2018 Will and Alan’s action therefore constituted a ‘collateral attack’ on the court’s order.
To determine the issue at hand, the Honourable Justice Kaufman elucidated the key principles governing probate in Ontario.
Governing Law – the legal effect of probate
The court’s jurisdiction in matters of probate is inquisitorial. Their function and purpose is to ascertain which documents constitute the testator’s last will and testament.[9]
As such, a CAETW is a court pronouncement affirming the validity of a Will, and that:
The court highlighted that subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the estate trustee and the validity and contents of the Will. If the application for probate is uncontested and the Last Will and Testament appears in good order, some of the matters required to be proved will be presumed.[11]
For the purposes of the negligence action, the court clarified that the grant of probate is binding, and operates in rem, affecting third-party rights.[12]
Analysis
Ultimately, the court found that advancing the negligence action constituted a collateral attack on the grant of probate and contradicted its pronouncement regarding the 2018 Will’s validity.[13]
Alan argued that there is no good or sensible reason for a person preparing a Will to intentionally leave a partial intestacy, and that a competent lawyer would advise against such an outcome. While the court found these submissions compelling, it noted that Alan’s course of action should have been to oppose probate and apply for rectification of the 2018 Will. In this regard, he was on notice to James Jr.’s application for probate but did not file a Notice of Objection.[14]
The court reasoned that if the negligence action would be allowed to occur, it would require the court to make findings of fact that directly contradict findings of fact made in a previous proceeding, thereby undermining the credibility of the judicial process. In this regard, it cited the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc.,[15] for the judicial policy favouring finality.[16]
Concluding Comments
The court allowed Mr. Dioguardi’s motion for summary judgment, awarded him his costs, and dismissed Alan’s negligence action.
The decision in Cooke v. Dioguardi contends that a negligence action against a drafting solicitor is effectively barred following a grant of probate. For this reason, it will be interesting to watch the development of cases post Cooke as to how Ontario courts will approach this issue and the inter-related issues of limitation periods, and the principle of discoverability.
—
[1] Cooke Family Trust v. DioGuardi et al., 2025 ONSC 370 (“Cooke”).
[2] Cooke at paras 2 and 3.
[3] Cooke at para 4.
[4] Cooke at para 5.
[5] Cooke at para 6.
[6] Cooke at paras 7 and 8.
[7] Cooke at para 9.
[8] Cooke at para 10.
[9] Cooke at para 18.
[10] Cooke at para 17.
[11] Cooke at 19; citing WEL Partners’ Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, Adam Parachin, Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021) at pg. 205.
[12] Cooke at para 18.
[13] Cooke at para 23.
[14] Cooke at paras 27 – 28.
[15] Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 20.
[16] Cooke at para 30.
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