Some drafting errors in wills can be rectified before or during the process to obtain a Certificate of Appointment of Estate Trustee (“CAET”). In Ontario we now know that the disappointed beneficiary alleging those errors, who also sues the drafting solicitor, must seek rectification prior to the issuance of the CAET. Otherwise, the doctrine of abuse of process may prevent the disappointed beneficiary from suing the drafting solicitor in negligence. The Ontario Court of Appeal recently released their decision in Elizabeth Casey Cooke Family Trust v. Dioguardi, 2026 ONCA 85 (“Cooke Family Trust”). The court upheld the decision of the motion judge which dismissed the negligence claim as an abuse of process.

The salient facts are as follows. The deceased signed a will on January 9, 2018 and died shortly thereafter on March 16, 2018. A few days later, the drafting solicitor was confronted by two of the sons of the deceased. One of them was the father of the two grandchildren referred to in the will. The will provided that a portion of the residue be held in a family trust for the deceased’s three children and two grandchildren. However, the family trust was conditional on the deceased’s spouse dying before him or dying within a period of 30 days. In a previous draft of the will there was an alternate provision if the deceased’s spouse survived, but in the last will there was no such provision. As a result, there was a partial intestacy of that portion of the residue. On an intestacy, the grandchildren would not receive any portion of the estate. The sons asked the drafting solicitor about the apparent error in the will. The drafting solicitor denied any error and said the will reflected the deceased’s intentions. On April 24, 2018, one of the sons applied for a CAET which was issued on May 16, 2018. No one objected to the application for a CAET. Almost two years later, the father of the children who lost out on the family trust sued the drafting solicitor in negligence.

The drafting solicitor brought a summary judgment motion in the negligence action on the basis that it was a collateral attack on the CAET and an abuse of process. The motion judge agreed and dismissed the negligence claim. The motion judge reviewed Neuberger v. York, 2016 ONCA 191 (“Neuberger”), which states that the issuance of a CAET is the court procedure which confirms the validity of the will. This is significant. Executors applying for a CAET 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 of the will; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity.

At the point of applying for a CAET the court’s jurisdiction is inquisitorial and the court is obligated to “ascertain and pronounce what documents constitute the testator’s last will and are entitled to be admitted to probate.” (Neuberger at para. 68). In Neuberger the court noted that probate is “an in rem pronouncement that the instrument represents the testator’s true testamentary intentions.” (Neuberger at para 118). The court in Cooke Family Trust, stated “It follows that unless and until it is revoked, the Certificate relating to James Sr.’s estate issued on May 16, 2018, is therefore a final order of the court confirming the Will reflected James Sr.’s intentions.” (at para 21).

Part of the father’s argument before the motion judge and on appeal was that rectification of the will would have been “extremely difficult if possible at all” given that the drafting solicitor denied any error in the will. Essentially, the argument was that the drafting solicitor frustrated his ability to seek rectification during the certificate probate. In Cooke Family Trust, the court rejected that argument, noting that the cooperation of the drafting solicitor is not a prerequisite for rectification. Moreover, the motion judge found that there was other “compelling” evidence that an error had been made. The court also noted that more than 2.5 years after commencing the negligence action, the father started a separate application seeking a declaration that the intestacy provisions of the Succession Law Reform Act governed the distribution of the partial residue. The court agreed and made the declaration on March 13, 2025. The declaration obtained by the father further confirmed the disposition of the partial residue, in line with the will.

Although the court in Cooke Family Trust disagreed with the motion judge that the negligence claim was a collateral attack on the CAET, it agreed that it was an abuse of process. The court made it clear that the decision in Cooke Family Trust does not mean that negligence claims against drafting solicitors are always prohibited once a CAET is issued. However, where the error could be rectified before or during the CAET process, the disappointed beneficiary must take steps to rectify the will, or else risks that the doctrine of abuse of process will prevent a subsequent negligence claim.

The court stated that the doctrine of abuse of process “is not employed to shield lawyers from liability; it is employed to recognize and reinforce the public good of the certificate process by requiring parties to employ the available processes and remedies before, or possibly in parallel to, bringing a negligence action against a solicitor. Errors that can be addressed in the certificate process via rectification must be raised at that stage.” (para 29).  The holding in Cooke Family Trust recognizes the significant of a CAET. It is not simply a document that allows an estate trustee to deal with third parties, for example. It has broader implications, is based on factual underpinnings, and is a final order of the court until and unless it is revoked.