Probate is the process by which the validity of a Will is determined. When executors named in a Will apply for probate, they must establish that

1. The testator satisfied the statutory age requirement to make a Will;
2. The Will followed statutory requirements and had not been revoked;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.

In probate matters, the Court’s role is inquisitorial, in that it must ascertain and pronounce which documents constitute a testator’s last Will. Probate binds parties in the proceedings and unless it is set aside, it operates in rem and may affect the rights of third parties.

A Certificate of Appointment of Estate Trustee with a Will (“CAETW”) is granted through probate. It acts as confirmation from the Court that a document is the testator’s authentic final Will, and an executor may act on behalf of the estate in accordance with the terms of the Will.

In Cooke Family Trust et al v. Dioguardi et al, 2025 ONSC 370, the Court assessed whether the plaintiffs could sue the lawyer who drafted a Will where a CAETW had already been granted.

James Cooke retained Paul Dioguardi to update his Will. The Will included the following terms regarding the distribution of the estate if Mr. Cooke’s wife, Patricia, predeceased or died within 30 days of him. In such case, the residue of the estate would be divided amongst their three sons as follows:

• James Basil Cooke (“James”) – 32.5%
• Guy Jonathan Cooke (“Jonathan”) – 32.5%
• Alan Cooke (“Alan”) – 15%

Two family trusts created for the benefit of Alan’s children also each received 10% of the estate’s residue: the Elizabeth Casey Cooke Family Trust and the Charles Daniel Cooke Family Trust (collectively, the “Trusts”). The Will appointed James as the sole executor and trustee.

Mr. Cooke died on March 16, 2018. Patricia died in May 2024. After Mr. Cooke’s death, James and Alan met with Mr. Dioguardi. They discovered that the Will did not contemplate their current circumstance where Patricia survived her husband by more than 30 days.

On April 24, 2018, James applied for a CAETW. The application was on notice to Alan and Jonathan. They did not object to James’ appointment. On May 16, 2018, James received the CAETW.

On March 18, 2020, Alan commenced an action in his capacity as litigation guardian for his children and the trustee of the Trusts (collectively, the “plaintiffs”). Alan alleged Mr. Dioguardi and his law firm (collectively, the “defendants”) negligently prepared Mr. Cooke’s Will, which led to a partial intestacy. He claimed that the defendants’ negligence deprived each of his children of their 10% share in the residue of the estate.

The defendants claimed that the CAETW affirmed that Mr. Cooke knew and approved of the contents of the Will, and that it was valid in all respects. They argued that for the plaintiffs to succeed in this action, the Court would need to determine that the testator did not have knowledge of or did not approve of the Will. This undermined the legitimacy of the CAETW.

The plaintiffs argued that they could accept that the Will as drafted for the purpose of estate administration while also suing the negligent lawyer whose drafting deprived the beneficiaries of their rightful entitlements.

In his decision, Justice Kaufman clarified that when probate is granted, the Court conclusively certifies that specific writings constitute a Will and that individuals named as trustees have authority to act on behalf of the estate. Unless probate is revoked, no one may challenge the identity of the executor, the testator’s capacity, or assert that the Will was forged. If a question arises regarding the meaning of a Will, the Superior Court takes the Will as probated and interprets it accordingly.

A Will cannot be probated if the testator did not know or understand its contents. Where probate is challenged on these grounds, onus falls on the propounders of the Will to prove that the testator knew and approved of its contents at the time the Will was executed.

While there was compelling evidence that Mr. Cooke did not intend to leave a partial intestacy, Justice Kaufman determined that the action should be dismissed.

Firstly, Alan was served with James’ CAETW application and did not object. The plaintiffs claimed they did not object to the application because they did not oppose that Mr. Cooke signed the Will or with James’ appointment as executor. However, since probate also addresses the testator’s knowledge and approval of a Will, any concerns on these matters should have been brought to the Court during the probate process and the Court would have resolved these issues before granting a CAETW.

Second, Justice Kaufman held that the plaintiffs’ negligence claim undermined the integrity of the legal system. To succeed in the negligence action, the plaintiffs had to establish that Mr. Cooke intended to leave a gift to his grandchildren if Patricia did not predecease him, and the defendants negligently failed to give effect to this intention when drafting the Will. Such a finding would yield inconsistent results by contravening the CAETW, which conclusively determined the Will’s validity and contents. Requiring the Court to make a finding of fact contrary to a previous proceeding undermined the credibility of the judicial process.

Finally, if the plaintiffs’ action succeeded, certain beneficiaries would receive greater benefits than what they would have received if the Will had been rectified. This windfall would be obtained at the expense of the defendant-solicitor. The plaintiffs should have mitigated their damages by seeking a Will rectification.

Takeaways

Granting of probate acts as a form of finality on certain issues, such as the legitimacy of a Will. Before accepting or not contesting a probate application, beneficiaries should be mindful that their silence may bar their ability to seek future relief on such matters.