In Elizabeth Casey Cooke Family Trust v. Dioguardi[1], the Court of Appeal revisited issues in the Estate of James Cooke (the “Deceased” or the “Estate”) and upheld the motion judge’s decision that, following the grant of a certificate of appointment of estate trustee, pursuing a negligence action against the drafting solicitor constituted an abuse of process.

Facts

On January 18, 2018, the Deceased executed a Last Will and Testament (the “Will”) that in effect left a partial intestacy. In notations made on a previous will and handwritten notes made by the Deceased and provided to the drafting solicitor, the Deceased outlined that the residue of the Estate ought to be distributed in specific proportions to his three children (James Jr., Jonathan and Alan) and two grandchildren (Elizabeth and Charlie).[2]

Contrary to these instructions, the Will made the distribution of the residue conditional on the Deceased’s wife predeceasing him or dying within 30 days of his death, with no provision in the alternative.[3] Since the Deceased’s wife ended up surviving the Deceased for six years, the condition was not satisfied. As such, the distribution of the residue of the Estate was left to the mechanisms of intestacy under the Succession Law Reform Act, wherein the grandchildren would have no entitlement.[4]

In May 2018, James Jr. was issued a certificate of appointment of estate trustee with a will (“CAETW”).[5] In March 2020, Alan commenced a negligence action against the drafting solicitor on behalf of the Deceased’s two grandchildren wherein the drafting solicitor was granted summary judgment on the grounds that the negligence action was an abuse of process.[6]

For a more detailed discussion of the motion judge’s decision please see our previous blog post.

Court of Appeal Issues

The Court of Appeal was tasked with determining whether the motion judge erred in concluding the following:

• A negligence action against the drafting solicitor of the Will was a collateral attack on the CAETW;
• Once a CAETW is issued, its effect is to prohibit an action in negligence against the drafting solicitor;
• That finding that the respondents negligently failed to give effect to the testator’s intentions would contradict the grant of probate.[7]

The Appellate Court found that all three issues were interrelated and considered them together in its analysis.

Analysis

On the issue of collateral attack, the motion judge found this finding was based on the idea that the drafting solicitor’s negligence could have been rectified during the certificate process.[8]

The appellants argued that because the drafting solicitor asserted that the Will reflected the Deceased’s intentions that it would have been “extremely difficult if possible, at all” to rectify the Will.[9] The Appellate Court found (without determining whether the co-operation of a drafting solicitor might be necessary in other cases) that the drafting solicitor’s co-operation was not necessary here.[10] Further, there was vast evidence in this case to ascertain the Deceased’s intentions regarding the residue of his Estate, such evidence included: the Deceased’s notations on his prior will, the Deceased’s handwritten notes, correspondence between the Deceased and Alan, and the drafting solicitor’s discovery transcript wherein the appellants argued that he “admitted his error”.[11] The Appellate Court opined that such evidence would have been admissible in a court of probate on the issue of rectification.[12] The Appellate Judge further proposed that if the Will had been rectified during probate, the drafting error could have been resolved by deleting the words that made the distribution conditional on the Deceased’s wife dying.[13]

Upon review of the motion judge’s decision, the Appellate Court, technically speaking, found that the negligence action against the drafting solicitor was not a collateral attack[14] but that the motion judge was applying the broader abuse of process doctrine to which ‘collateral attack’ was a subset.[15]

In demonstrating why the negligence action against the drafting solicitor was an abuse of process, the Appellate Court outlined the legal nature of a Certificate of Appointment of Estate Trustee as follows:[16]

• The certificate is a court order “certifying that particular writings constitute a deceased’s will and that those named as estate trustees have the authority to act in relation to the testator’s estate”.[17]
• To issue a certificate, the court must be satisfied that the will was duly executed, the testator has testamentary capacity, the testator knew of and approved the contents of the will.[18]

As such, once the CAETW was issued in May 2018, it was an in rem decision that represented the Deceased’s testamentary intentions.[19] Therefore, the motion judge held that because the negligence action required a finding that the drafting solicitor failed to give effect to the Deceased’s intentions, the central finding of the CAETW was under attack.[20] The Appellate Court held that the motion judge was correct in finding the negligence action was an abuse of process because it was an attempt to circumvent factual findings already determined by the probate process.[21]

What does this mean for negligence claims against drafting solicitors moving forward?

The Appellate Court articulated its narrow holding in this case as the following:  “where a solicitor makes a drafting error that could have been rectified in the certificate process, and the party harmed by that error takes no steps to have the will rectified, then the doctrine of abuse of process may prevent the harmed party from subsequently bringing an action against the solicitor for damages”.[22]

Despite upholding the motion judge’s decision on these particular facts, the Appellate Court made it clear that not all negligence claims are barred once a probate certificate has been issued. The Court proposed that there was nothing preventing claims against solicitors for the following:

• Recovering costs incurred due to the rectification process (legal costs, disbursements, lost opportunity costs owing to delays in obtaining a certificate)[23];
• Negligent drafting that cannot be rectified in the probate process (i.e negligent advice followed by the testator or omitting an intended beneficiary);[24]
• Failing to co-operate with a beneficiary to rectify a will that was affected by a drafting error once such error is brought to the solicitor’s attention.[25]

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[1] 2026 ONCA 85 (CanLII)

[2] Ibid at para 1.

[3] Ibid.

[4] Ibid at para 4.

[5] Ibid at para 6.

[6] Ibid at para 7.

[7] Ibid at para 10.

[8] Ibid at para 12.

[9] Ibid at para 13.

[10] Ibid at para 14.

[11] Ibid at para 18.

[12] Ibid at para 19.

[13] Ibid at para 20.

[14] Ibid at para 22.

[15] Ibid at para 23.

[16] Ibid at para 21.

[17] Ibid at para 21 citing Neuberger v York, 2016 ONCA 191 (CanLII) [Neuberger] at para 66.

[18] Ibid citing Neuberger at paras 77-78.

[19] note 16.

[20] Ibid.

[21] note 15.

[22] Ibid at para 24.

[23] Ibid at para 25.

[24] Ibid at para 26.

[25] Ibid at para 27.