All About Estates
By Jonathon Vander Zee, April 23rd, 2025
Throughout 2024 and into early 2025, the Courts released many riveting and groundbreaking decisions that have had an echoing effect throughout the estate litigation world.
- Tessaro v. Gora, 2025 ONSC 198
It is well known that a will speaks and takes effect as if it had been made immediately before the death of the testator. The takeaway is that the 15-year ultimate limitation period runs from the date of the lawyer’s negligent act (the will drafting), not from the date of death. In other words, the “claim” (in law) occurs when the negligent drafting happened, even though the harm is only realized much later. This decision essentially imposes a practical 15-year “shelf-life” on wills in terms of professional liability. - Shannon v. Hrabovsky, 2024 ONCA 120
Sometimes family members may hide or delay sharing a will. The core issue was when the limitation period starts running for a will challenge. Does mere knowledge that a will exists trigger the limitation period, or must the claimant have knowledge of the contents of the will and their impact on her interests? This decision ensures that estate trustees must promptly disclose the will to interested parties or risk prolonging the limitation period, and in turn extending the time period for which the estate could become involved in litigation. - Re James Estate, 2024 ONCA 623
The issue was whether the court has the inherent jurisdiction to refuse to appoint an estate trustee even when the statutory requirements are met and no one objects. The Ontario Court of Appeal confirmed that courts have a broad inherent authority in estate matters to ensure proper administration. Specifically, the court held that it has an inherent discretion to deny an application for a certificate of appointment of estate trustee where the applicant is not appropriate, even if the application is unopposed and technically meets the statutory requirements. Importantly, the court noted it may consider factors beyond just the immediate welfare of the beneficiaries, including the applicant’s character and the integrity of the estate administration process. This decision highlights that the Courts will prioritize the integrity of estate administration over procedural entitlement. - Roe v. Roe, 2024 ONCA 179
Suspicious circumstances were acknowledged as present – Beverly had a dementia diagnosis around the will’s execution, and the change in her estate plan was extreme. The application judge found those circumstances to be true, but ultimately … The Ontario Court of Appeal dismissed the appeal and upheld the 2005 will. This decision affirms the principle of testamentary freedom, even in circumstances of advanced age and illness. It highlights that a testator can disinherit an adult child for reasons that may seem misguided, as long as those reasons are not purely delusional and the testator meets the capacity criteria. This is useful guidance for lawyers in drafting wills to, for example, ensure that the testator’s reasons for making certain decisions are well-documented. - Estate of William Waters v. Henry, 2024 ONSC 4190
William Waters, a wealthy professor and businessman, secretly gave over $30 million in cash and property to his much-younger girlfriend (who was also his wife’s caregiver)… The Court upheld William’s freedom to make those decisions with his money, even if they were “bad” decisions. This high-profile decision further outlines the principle of testamentary autonomy and freedom of inter vivos gifting (gifts made during someone’s lifetime), even where the transfers seem unwise or unfair. It is a reminder that courts will generally respect a capable adult’s decision to give away wealth. However, the decision also illustrates limits to that freedom: fiduciary obligations and equitable doctrines can intervene to prevent injustice to vulnerable people.
