Ontario Superior Court of Justice

Court File No.: CV-20-83200
Date: 2025/01/16

Parties

RE:
Elizabeth Casey Cooke Family Trust and Charles Daniel Cooke Family Trust by their Trustee, Alan Cooke, and Elizabeth Casey Cooke and Charles Daniel Cooke by their Litigation Guardian, Alan Cooke (Plaintiffs)
AND:
Paul Dioguardi, Dioguardi Tax Law and Dioguardi Tax Law Professional Corporation (Defendants)

Before: Justice A. Kaufman

Counsel:
Paul D’Angelo, Counsel for the plaintiffs
Alexandra V. Mayeski and Alice E. Colquhoun, Counsel for the defendants

Heard: September 11, 2024

Endorsement

Introduction

[1] The issue in this summary judgment motion is whether the plaintiffs can pursue a negligence action against a lawyer who drafted a will where the Court has granted a Certificate of Appointment of Estate Trustee with a Will (CAETW).

Background

[2] James Cooke passed away on March 16, 2018. Before his passing, he retained the defendant, Paul Dioguardi, to update his will. Mr. Dioguardi was also the lawyer who prepared his previous will in 1993.

[3] In 2018, James Cooke’s wife, Patricia, was suffering from dementia. She passed away six years later, in May 2024.

[4] James and Patricia Cooke had three children: Alan, James (who will be referred to as "James Jr."), and Jonathan. They also had two grandchildren, Alan's children, Elizabeth and Charlie.

[5] The 2018 will outlines how the estate was to be distributed in the event that Patricia Cooke predeceased James or died within 30 days of him. In such a case, the residue of James Cooke’s estate would be shared among his three sons: James Basil Cooke (32.5%), Guy Jonathan Cooke (32.5%), and Alan Cooke (15%). Additionally, two family trusts established for the benefit of Alan Cooke’s children would receive 10% each: the Elizabeth Casey Cooke Family Trust and the Charles Daniel Cooke Family Trust.

[6] After James Cooke’s passing, Alan and James Jr. met with the defendant. During that meeting, they discovered that the will did not contemplate the scenario in which their mother survived their father by more than 30 days, which was precisely what occurred.

Application for Certificate of Appointment of Estate Trustee

[7] Under the 2018 will, James Jr. was appointed as the sole executor and trustee. On April 24, 2018, James Jr. applied for a CAETW. Alan and Jonathan were served with the application and did not object to the appointment.

[8] The CAETW was issued on May 16, 2018. The plaintiffs have not sought the return of the CAETW.

Alan Commences This Action

[9] On March 18, 2020, Alan initiated this action in his capacity as litigation guardian for his children, Elizabeth and Charlie, as well as trustee of the trusts created for their benefit. The plaintiffs allege that Mr. Dioguardi and his law firm were negligent in preparing James Cooke’s will, resulting in a partial intestacy. They claim that due to the defendant’s negligence, Elizabeth and Charlie were deprived of a gift that was intended to be bequeathed to each of them in the amount of 10% of the residue of James Cooke’s estate.

Alan Commences an Application for Directions

[10] On October 21, 2022, Alan filed an application for directions, seeking a declaration that the intestacy provisions outlined in sections 45 and 46 of the Succession Law Reform Act govern the distribution of the estate's residue. Alan argues that the will created a partial intestacy and that, following his mother's entitlement to the preferential share of $200,000 plus one-third of the residue, James Jr., Alan, and Jonathan are entitled to the remaining two-thirds of the residue, to be divided equally among them.

Principles Applying to Summary Judgment Motions

[11] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. The interpretation of Rule 20.04(1) is further guided by Rule 1.04, which mandates that the Rules be liberally construed to ensure a just, expeditious, and cost-effective resolution of a proceeding on its merits, taking into account the complexity of the issues and the amounts involved.

[12] In deciding whether to grant summary judgment, the judge must consider whether a full appreciation of the evidence and issues necessary for making dispositive findings can be achieved through summary judgment, or if it can only be obtained through a trial. A trial is not required if the judge, during the motion, can: 1) achieve a fair and just adjudication; 2) make the necessary findings of fact; 3) apply the law to those facts; and 4) determine that the motion is a proportionate, more expeditious, and less expensive means of achieving a just result compared to going to trial.
See Hryniak v. Mauldin, 2014 SCC 7, para 4.

[13] In this case, the court is satisfied that the issue to be determined is a question of law that does not necessitate weighing evidence, evaluating credibility, or drawing inferences. Addressing this question is a proportionate and cost-effective method for resolving the dispute.

Analysis

[14] The defendants argue that the CAETW is a pronouncement by the Court affirming that the deceased knew and approved of the contents of the will, and that it is valid in all respects. They contend that this action constitutes a collateral attack on an existing court order because, for the plaintiffs to succeed in this action, the court would necessarily need to determine that the deceased did not have knowledge of or did not approve the contents of the Will.

[15] For their part, the plaintiffs argue that a CAETW does not preclude this action. They contend that they should be able to accept the will as drafted for the purposes of estate administration while also suing the lawyer whose negligent drafting resulted in depriving the beneficiaries of their rightful entitlements.

What is the Legal Effect of a CAETW?

[16] Since January 1, 1995, applications for probate have been governed by Rules 74 and 75 of the Rules of Civil Procedure. Under these Rules, an application for a "Certificate of Appointment of Estate Trustee" replaces the former application for probate. The Court of Appeal for Ontario discussed the meaning of probate and the nature of the court’s role and jurisdiction in probate matters in Neuberger v. York, 2016 ONCA 191.

[17] Probate is the process by which a will’s validity is determined. When executors named in the will apply for probate, they must establish that (1) the testator satisfied the statutory age requirement to make a will; (2) the will was executed in accordance with the statutory requirements and has not been revoked; (3) the testator knew and understood the contents; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity.

[18] The Court’s jurisdiction in matters of probate is inquisitorial. The court's function and obligation are to ascertain and pronounce which documents constitute the testator's last will. The granting of probate does not bind only the parties to the proceeding; unless and until probate is set aside, it operates in rem and can affect the rights of third parties.

[19] If the application is not contested and the will appears in good order, some of the matters required to be proved will be presumed. However, if probate is contested, those opposing it may argue that the will fails to meet one or more of the required conditions. A will cannot be probated if the testator did not know and understand its contents. In cases where probate is challenged on the grounds that the testator did not know or understand the will’s contents, the propounders of the will bear the burden of proving that the testator knew and approved of the contents at the time it was executed.

[20] When probate is granted, the court certifies that the specific writings constitute the deceased's will and that the individuals named as estate trustees have the authority to act on behalf of the testator’s estate.

[21] Subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the grantee as executor and the validity and contents of the will. This conclusiveness means that unless the grant is revoked, no one can challenge the identity of the executor, the testator’s capacity, or assert that the will was forged, as such actions would contravene the seal of the court.

[22] Admitting documents to probate as testamentary documents does not prevent the court from construing them to determine their true effect. If a question arises regarding the meaning of a will, the superior court takes the will as probated and interprets it accordingly.

Is This Action a Collateral Attack on the CAETW?

[23] In my view, it is. The plaintiffs argue that James Cooke intended to provide gifts for his two grandchildren in his new will and that the defendant negligently failed to draft the will in accordance with his testamentary intentions. Advancing this argument directly contradicts the court’s pronouncement regarding the will’s validity.

[24] Alan Cook states in his affidavit that his father asked him to explain the options available for providing gifts to his grandchildren through a trust. Alan wrote a letter dated September 21, 2017, outlining options "with respect to Elizabeth and Charlie." Additionally, his father provided the defendant with a handwritten note, dated either December 2017 or January 2018, which remains in the defendant’s file and specifies how the residue of the estate should be divided. The note indicates that 10% of the estate’s residue would be allocated to each of James Cooke’s grandchildren via a trust. Furthermore, Alan sent his father a letter dated January 5, 2018, offering suggestions regarding trusts for Elizabeth and Charlie.

[25] The plaintiffs argue 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. Additionally, they rely on the strong presumption against intestacy in the interpretation of wills, as articulated by Lord Esher, M.R. in Re Harrison Estate:

There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[26] The plaintiffs provide compelling evidence and arguments suggesting that leaving a partial intestacy was not what James Cooke intended. However, I conclude that the appropriate course for advancing their arguments would have been to oppose probate and apply for rectification of the will. I reach this conclusion for the following reasons.

[27] First, as noted earlier, individuals applying for probate must demonstrate that the testator knew and understood the contents of the will. While it is true that probate is typically granted as an administrative matter where the will appears to comply with the statutory requirements, if interested parties raise issues regarding the testator's knowledge or approval of the will’s contents, the court will try these issues. When a CAETW is issued, the court certifies that the specific writings constitute the deceased’s will and conclusively determines that the testator knew and understood its contents. Alan was served with James Jr.’s application for a CAETW but did not file any notice of objection.

[28] The plaintiffs argue that there are two reasons to apply for probate: to have the will recognized as validly signed by the testator and to officially appoint the trustee/executor. They contend that there was no need to oppose probate because they do not contest that James Cooke signed the will or James Jr.'s appointment. However, as discussed above, these are not the only functions of probate. Probate also serves to confirm that the testator knew and understood the will’s contents.

[29] In this action, the plaintiffs are directly challenging whether James Cooke knew and understood the contents of the will. To succeed in this negligence action, they must establish that it was James Cooke’s intention to bequeath gifts to his grandchildren in the event that Patricia did not predecease him, and that his lawyer negligently failed to give effect to that intention when he drafted the will. However, such a finding would contradict the grant of probate, which conclusively determines the will’s validity and contents.

[30] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 20, the Supreme Court of Canada articulated the judicial policy favoring finality, which supports the rule against collateral attacks. It held that “a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except in those cases provided by law for the express purposes of attacking it.” Requiring a Court to make findings of fact that directly contradict explicit findings of fact in a previous proceeding would “undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.”
See also Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, para 51.

[31] It is important to note that in his related application for directions, Alan seeks a declaration that the intestacy provisions outlined in sections 45 and 46 of the Succession Law Reform Act govern the distribution of the estate's residue. This position contradicts what the plaintiffs allege were James Cooke’s testamentary intentions in this action. Allowing this action to proceed poses a risk of inconsistent results, which would undermine the integrity of the legal system.

[32] There is another reason to disallow this action from proceeding. If the plaintiffs were successful, it would lead to certain beneficiaries receiving greater benefits than they would have if the will had been rectified to align with James Cooke’s intentions, and this windfall would be obtained at the defendant solicitor’s expense. In Walker v Medlicott & Son (A Firm), the Court of Appeal for England and Wales held that a plaintiff suing his solicitor for negligence in the preparation of a will should have mitigated his damages by seeking to have the will rectified. The Court noted that a successful negligence action would result in greater benefits to some beneficiaries and concluded that "justice would seem to demand that such other beneficiaries should share the financial burden of putting things right”.

[33] The plaintiffs assert that if a lawyer does not acknowledge an error or does not recognize that the will did not properly reflect the testator’s instructions, then rectification will be extremely difficult, if not impossible. However, I am not persuaded by this argument. The evidence required to succeed in an application for rectification and in this negligence action would be essentially the same. If the plaintiffs have a valid claim in negligence, they would also have a strong claim for rectification of the will.

[34] The plaintiffs argue that opposing probate would have delayed the administration of the estate, to the detriment of the beneficiaries. While this is undoubtedly true, such delays are the price to pay in order to ensure that a will is administered in accordance with the testator’s true wishes.

Striking of the Plaintiff’s Affidavit

[35] The defendants request that Alan's affidavit, filed in response to this motion, be struck. They argue that it is irrelevant, fails to comply with Rules 4.06(2) (which requires the affidavit to be confined to the affiant's personal knowledge), and Rule 39.01 (which fails to identify the source of evidence based on information and belief). They also cite section 13 of the Evidence Act, which requires corroboration of evidence regarding matters that occurred before the deceased’s death. Additionally, they contend that the affidavit addresses the merits of the plaintiffs’ negligence action, whereas the defendants’ motion is based on a discrete question of law, and is therefore irrelevant. Finally, they submit that the affidavit contains legal arguments and improper opinion evidence from a non-expert.

[36] While the defendants’ criticisms of the affidavit are largely well-founded, I decline to strike the affidavit in its entirety because it provides context and the Court relied on certain passages in its reasons. The Court has simply disregarded the objectionable portions of the affidavit.

Costs

[37] Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding or a step in a proceeding are at the discretion of the court. Although discretionary, a court must fix costs on a principled basis.
See Davies v. Clarington (Municipality) et al., 2009 ONCA 722, para 40.

[38] Rule 57.01(1) outlines the factors the court may consider when exercising its discretion to award costs under section 131 of the Courts of Justice Act, in addition to the result of the proceeding and any written offer to settle or contribute. These factors include the principle of indemnity, which considers the experience of the lawyer involved, the hourly rate, and the time spent. They also encompass the complexity of the proceeding and the significance of the issues. Furthermore, the court may consider certain conduct of the parties, including actions that may have either shortened or lengthened the proceeding's duration or conduct that was improper, vexatious, or unnecessary.

[39] The defendants are seeking their costs for this motion and the overall action. They have uploaded their Bill of Costs on Case Center, claiming a total of $25,535.20 on a partial indemnity basis, which includes HST and disbursements. The plaintiffs did not upload a costs outline, which prevents the court from making a comparative assessment of the parties’ respective costs.

[40] I have reviewed the defendants' Bill of Costs and the attached dockets, and I am satisfied that the time spent and the hourly rate charged were reasonable. There were five timekeepers on this file, which typically involves some duplication; however, work was appropriately delegated to junior counsel and law clerks. The motion was of medium complexity, and the issues at hand were significant for the parties involved.

[41] Considering the principles outlined above, along with the principle of proportionality, the court awards the defendants their costs, fixed at the amount of $20,000, payable within 30 days.

Disposition

[42] The defendants’ motion for summary judgment is allowed.

[43] The plaintiffs’ action is hereby dismissed, with costs fixed in the amount of $20,000, inclusive of disbursements and HST.

A. Kaufman
Date: January 16, 2025

Cited Authorities

Legislation

1. Succession Law Reform Act, RSO 1990, c S.26
2. Rules of Civil Procedure, R.R.O. 1990, Reg. 194
3. Evidence Act, RSO 1990, c E.23
4. Courts of Justice Act, R.S.O. 1990, c. C.43

Case Law

1. Hryniak v. Mauldin, 2014 SCC 7, para 4
2. Neuberger v. York, 2016 ONCA 191, paras 66, 68, 69
3. Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 20
4. Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, paras 38, 51
5. Davies v. Clarington (Municipality) et al., 2009 ONCA 722, para 40
6. Re Harrison Estate (1885), 30 Ch.D. 290 at 393-4
7. Walker v Medlicott & Son (A Firm), [1999] 1 All ER 685