Will and Estate Lawyers including myself are frequently asked by our clients – what is wrong with simply using a Will kit downloaded off of the internet? Why do I have to spend $1,000 and more on you, when I can do it myself. The hypocritical answer that I give my clients is absolutely please go for it, there is virtually no profit to be earned by our office in preparing a basic Will. Many general practitioners do it as a loss leader. The author is not a general practitioner, his practice is exclusively limited to wills and estates. The reality is we earn far more in legal fees in remedying a Will drafted by a willmaker. That is one that you do yourself with no guidance by a lawyer.

One common problem of a self drafted will is when a Will on its face it contains two clauses that appear to clash with each other. The recent case of McCubbin v. McCubbin explored this issue. The court reiterated the modern method and principles of interpreting a Will. The court was allowed to consider outside evidence as to the intention of the willmaker. The beginning point is that the judge should sit in the willmaker’s armchair and determine what they were attempting to do and what were the willmaker’s circumstances and intent at the time of the wills signing. The court is required to look at a Will in its entirety, all of its provisions and to interpret the Will from a holistic perspective, including outside evidence if it is available as to what the willmaker intended. Another example of this principle is set out in re: Shamas, a 1967 a case which interpreted conflicting clauses technically referred to as repugnant clauses. What was the real intent, if two clauses do not make sense when contained in the same will. This mistake is more common that one can imagine. It takes a legally experienced eye to point out the conflict especially if they are hypothetical and not considered. Estate lawyers who are experienced Estate Litigation Lawyers travel down the same long torturous route that judges follow to resolve these repugnant clauses. But why spend the money if for a few dollars the will had been properly drafted in the first place. The moral of the story is please do the legal profession a favour, write your own Will and we will thank you after you are gone for enabling us to put food on the table and send our children to private school.

The Court of Appeals decision made in the 2026 case of Anroope et al v. Naqvi is a lesson in judicial humiliation. The Honourable Madam Justice Cory Gilmore, a highly experienced Judge who regularly sits on the Toronto Estates List, and is no fool, made a decision at the application level. By that, we mean the original decision was not based upon live evidence but rather written affidavits and oral argument. The case before Justice Gilmore was whether or not a fourth Will made by a father the year prior to his death was valid rather than the three Wills made earlier that year. Despite almost every warning sign that would have justified setting aside the last Will, Justice Gilmore found it to be valid. The Court of Appeal in February of 2026 put down the hammer and pointed out the many errors both factual and legal that Justice Gilmore made. The facts included two reports from a forensic handwriting expert who said that the signature in the last Will did not match the signature on the first three Wills. The Judge ignored the fact that the beneficiary under the first three Wills was a child and grandchild that had lived with the testator for over 30 years and had solely taken care of the willmaker. The fourth Will was sloppily drafted for free by a lawyer who was a business associate of a new beneficiary. The fourth Will contained an erroneous comment about the willmaker regularly being a skydiver and had made no fewer than 50 dives in the immediate year. The testator had never skydived in his life. Estate Litigation lawyers would have jumped all over this as did the Court of Appeal.

To paraphrase a comedian, there were more red flags in this fourth Will and its preparation than would be found in a Soviet era military parade. The Court of Appeal pointed out with excruciating detail the many mistakes made by Justice Gilmore. This author has not seen such an appellate court whipping in a very long time. Estate lawyers keep track of these decisions as there is a limited pool of court decisions in the area of Estate Litigation.

The successful appeal was argued by a legal team of a father and two children, who all practice together in a small boutique firm that describes itself as being family law experts. This is estate law and one can presume that the application decision by Justice Gilmore was so frail and flimsy that it did not need the services of an estate law litigator and expert.

The lesson for all of us is that going to court is capricious, unpredictable and expensive. That is why one should not interpret your lawyer’s recommendation for settlement as being a sign of weakness. It is rooted in the unpredictability of applying to court. Justice Gilmore, I have no doubt could be presented with the same facts with different names 99 times and would have come to a completely opposite decision to the one that she made in Anroope.

It is not uncommon for an executor to ask all of the beneficiaries of an estate before receiving their inheritance, to sign a full and final release. The concept is the executor is looking for protection and assurance that the beneficiaries will not complain at a later time over the executors handling of the estate. First of all, this is an important document, and you should use the services of a Will and Estate lawyer to help you understanding the release and whether or not you should be signing it. However, there are a series of important questions that should be asked first. It is not only what is in the four corners of the release but additional information that is usually not included. This is something that Wills and Probate Lawyers will want to know before they can advise you about signing that release. That extra information should include the following;

• Details of any registered assets such as a RIFF, RRSP, TFSA and insurance policy that listed someone as a beneficiary;
• A list of any jointly held assets which are not included as an estate asset; and
• Whether or not the executor used a Power of Attorney while the the willmaker was alive and therefore managed the willmaker’s assets before they died.

All of this assists in determining wider questions as to what assets actually formed part of the estate. Again, not simple but depending on the amount of money involved can be a very worthwhile exercise. This links into the concept of the presumption of resulting trust. We have written extensively on this important area of estate law. This is something that an experienced wills and estates lawyer will want to know about.

Traditionally, one of the standard methods of attacking a Will is claiming suspicious circumstances. This has been expanded to be a basis for attacking Powers of Attorney. Will and Estate Lawyers can look to the 2021 decision of Madam Justice H J Williams in Rudin-Brown et al v. Brown. She applied the suspicious circumstances test attacking Powers of Attorney that on even a cursory examination could not pass the smell test. Estate Litigation Lawyers keep in mind the law of Suspicious Circumstances which we will now set out, and while we may refer to Wills it equally applies to Powers of Attorney and quite frankly other testamentary actions. An example of a testamentary action is naming a beneficiary of an insurance policy. The law of suspicious circumstances is defined as follows;

They may be raised by:

1. Circumstances surrounding the preparation of the Will or Power of Attorney.
2. Circumstances tending to call into question the capacity of the testator or the grantor of the Power of Attorney.
3. Circumstances tending to show that the free will of the testator or grantor of the Power of Attorney was overborne by acts of coercion or fraud. The long-standing judicial source of this is the important Supreme Court of Canada 1995 decision in Vout v. Hay.

The importance of suspicious circumstances in any of these three categories effect the burden of proof with respect to knowledge and approval of the contents of the Will or the Power of Attorney. The burden with respect to testamentary capacity will be affected if the circumstances reflect on the mental capacity of the willmaker. Although the person trying to prove the Will has a legal burden with respect to its signing, knowledge and approval, the person trying to prove the Will is aided by a rebuttable presumption. However, if one can prove that the Will was signed properly and having been read over to or by the willmaker, who appeared to understand it, it will generally be presumed that the willmaker knew and approved of its contents and had the necessary testamentary capacity. In other words, if all you are trying to do is to have a Will approved by the court, the court begins with the presumption, but once you prove the most basic of formalities the court will assume that the willmaker knew what they were doing and met the test for capacity. However, if someone attacking a will can put forward suspicious circumstances, the evidentiary burden is shifted to the person trying to prove the Will. Justice Williams cited a number of cases that held the same test for a Will applied to a Power of Attorney. Wills and Probate Lawyers keep all of this front of mind when preparing a will for a client.

In determining whether there are suspicious circumstances, the court can look at many different things, but those include:

1. What was the physical and mental impairment of the willmaker;
2. Was the Will being questioned constitute a significant change from the former one;
3. Does the Will in question generally seem to make testamentary sense;
4. The factual circumstances surrounding the signing of the Will; and
5. Was any beneficiary instrumental in the preparation of the Will.

Quite frankly it is simply a smell test. If it looks suspicious as it did in this particular case, then the court will be far more likely to jump in and set aside the Will or the Powers of Attorney. In this particular case, the 50-year-old son who had been living with his now 91 year old mother for decades, rent free had attempted to replace his mother’s longstanding Will with a new one in which he was named as the sole executor, beneficiary and to produce new Powers of Attorney. The adult son took his mother to two different law firms, neither of whom were willing to assist in the preparation of the new Will and Powers of Attorney as they felt it was obvious that the mother did not know what she was doing. So the son downloaded off the internet the appropriate forms and arranged for his mother to sign the documents in front of two friends at a local restaurant. Just about every alarm bell was triggered and the court had no hesitation in setting aside the new Wills and Powers of Attorney prepared clearly at the instigation of the adult son.

As estate litigation lawyers will know, when a family is in turmoil and they are fighting over a Will even before the willmaker has died, there may be a temptation to secretly record telephone calls and family meetings as evidence to be used at a later time.  In the 2021 decision of Madam Justice H J Williams in Rudin-Brown et. al v. Brown, the answer is you do so at your own peril. The courts’ official position, which is a derivative of family law is, don’t do it, it is a breach of family trust and only leads to family friction, disrespect and distrust. The bottom line is that the court has the ability to admit surreptitious recordings, if their probative value outweighs a court’s distaste for such actions and any prejudice it may cause.

The law is the following:

1. Criminal Code section 184 prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation or the person who intended to receive it.
2. However surreptitious or illegal recordings is not the same thing as not being admissible.
3. The court maintains the right to exclude otherwise admissible evidence when the prejudicial effect outweighs the probative value. The evidence may be excluded under this cost benefit analysis, if it’s probative value is overborne by its prejudicial effect.  One can take a look at the Ontario Court of Appeal decision of R v. CYR and the Supreme Court of Canada decision of 1994 of R v. Mohan.

The court feels that secret recordings, especially in family law and estate cases, foster distrust and has a toxic effect on future relationships.

In other words, the law is muddled, and who knows whether or not a court would or would not down the road admit such secret recordings. One has to tread very carefully upon this swamp of illegal principles. You should consult with your Wills and Estates Lawyer who is an experienced Estate Litigation Attorney ( U.S. term).

In October of 2025, Justice Fred Myers whom we have quoted and reported on numerous times throughout our blog articles rendered yet another important decision, this time dealing with a side issue of the famous Robinson Huron Treaty litigation. For most people, including this author, this extremely important case which found its way more than once up to the Supreme Court of Canada dealt with a monster lawsuit brought by numerous aboriginal tribes who entered into the 1850 Robinson treaties. In those treaties, the Anishinaabe of the northern shores of Lake Huron and Lake Superior gave to the Crown vast territories in return for perpetual payments. The payments were supposed to have been adjusted in line with the resources earned by the government from the territories. However, the government basically froze those payments at $4.00 per person.

With incredible diligence and a herculean effort, a dream team of largely indigenous lawyers came together and for 17 years, fought tooth and nail for this breach of the treaty to be remedied.

For a lawyer, the decision by Justice Myers on top of the numerous other court decisions relating to the Robinson Huron Treaty cases reads like a blockbuster novel that is impossible to put down. Some of the highlights are a $10 billion settlement to be divided amongst approximately 40,000 members under the Robinson Huron treaty. The lawyers worked tirelessly and to quote Justice Myers “.. enjoyed stunning success. Through its sustained, creative and excellent efforts over some 17 years, the legal team engineered a settlement that is as historic as it is transformative to the beneficiary First Nations and their members. The legal team did great legal work. Its member lawyers represented the clients zealously, resolutely, passionately and with extraordinary success”. The lawyers over those 17 years accumulated 65,000 hours of work. However, at their normal hourly rate that would have translated into a $23 million legal bill, a fraction of the $10 billion settlement. However complicating all of this was, the negotiations at the outset in which a 5% contingency fee had been agreed to, which translated into a fee of $510 million. Yes half a billion dollars! This is the stuff of TV dramas.  Nineteen of the twenty-one First Nation tribes had no difficulty with the fee, especially when the legal team agreed to donate approximately half of that fee to various indigenous charitable purposes. Only two of the twenty-one had an objection and they appeared before Justice Myers on their own behalf without the benefit of lawyers.

Justice Myers in his usual impeccable fashion skewered the agreement and the $510 million compensation sought by the six members of the legal dream team. One should note that the legal dream team with one exception indigenous members themselves, had unique talents and abilities tailored specifically to litigation of this kind.

Justice Myers felt that the $510 million fee had no justification and that the court had every right to interfere with the fee being sought.

Now what do Will and Estate Lawyers think of this?  The author strongly disagrees with the decision of Justice Myers, but not on the legal basis that he has carefully crafted his decision upon. Justice Myers pointed out the incredibly important and crucial steps both practical and legal that the team took over a 17-year period.  He in essence allowed the team to receive only $40 million for their fees rather than the $510 million that were due and owing under the contingency agreement that had been entered into at the outset.  Justice Myers may very well be legally correct, but the factor that is not discussed is that it is critical for lawyers who are taking on highly contentious matters, in which they would have a chance under any kind of contingency agreement to receive partial or no compensation need to be amply rewarded when they take this type of lawsuit. Seventeen years is a very long time to work on a file, then only be partially or not paid at all. One needs to incentivize lawyers to take on these contentious and contingency matters. It is not enough to say that lawyers received $40 million for their work on a file and were therefore amply rewarded. The bigger issue is, this needs to be averaged with the many other loser lawsuits that earn little or nothing. Estate Lawyers and those that deal with Estate Litigation, dream of this reward, but Justice Myers has injected a wet blanket upon it.

We have discussed this concept many times, but because it is such a common factor in people’s lives and estate litigation that it is such a rich source of judicial interpretation. In the 2025 case of Morden v. Niwranski  2025 ONSC 3105 we had a contest between the late husband’s Mr. Lagana’s estate and his surviving common law spouse Ingrid Niwranski. Mr. Lagana left as we have described before, the worst bitter pill and gift one can to a common law spouse, namely preparing no Will. The bank account of the late Mr. Lagana had been placed in a joint account of he and his common law spouse. Mr. Lagana’s daughter of his first marriage had attempted to apply the presumption of resulting trust from Pecore v. Pecore. As Estate Litigation Lawyers well know a successful resulting trust would have taken the assets back from the widow and placed it in Lagana’s estate.  Result, to the daughter. However, interesting in that case the financial planner said that it was his normal practice to discuss and explain the right of survivorship when a joint account was opened. He stated that it was his common practice to always explain what joint with right of survivorship meant. However he could not recall the specific discussion he had with Lagana and his common law spouse. The court felt that this was enough to rebut the presumption of resulting trust. Again, it was not based upon the closeness of the relationship, but rather because there was third party objective evidence which is so critical in dealing with these disputes. Again, one always needs the assistance of an experienced estate litigator and perhaps even more importantly having an experienced Will drafting lawyer to address these issues head on at the time that one’s Will is prepared.

In one of our blog articles on dependency relief, ( just use the search window ) we talked about the case of Cassan v. Giroux.  Dependency relief is the remedy the court offers to dependants, such as a wife, or common law spouse who feels they were not adequately cared for in the deceased’s will.  One of the turning points in the trial were the contents of the obituary. The deceased’s children who wrote the obituary described the applying common law spouse as the deceased long-time partner and described the common law partner’s daughter as his stepdaughter, and grandchildren as his step grandchildren. The children attempted out of the other side of their mouth to argue that the putative common law spouse was only one of the deceased’s friends. Estate Lawyers and Estate Litigation Lawyers have to be alive to the many factors a court will consider to seeing if an applicant was a common law spouse.  Look at our blog Dependency Relief for the leading cases on the point.

In other words, be careful what you write in the obituary as all of your actions both before and after death will be looked at with a magnifying glass. Experienced Will and Estate Lawyers understand that.

What if someone who could have been ordered to pay you support, dies and leaves you nothing in their will, or leaves no will at all.  When you are an Estate Litigation Lawyers, this is a common situation.  A Will and Estates Lawyers must inquire about these factors when drafting a will and power of attorney.

The technical term for a common law spouse is one whom you lived in a conjugal relationship with.

A number of years ago we posted two blog articles on the issue of dependency relief. See DEPENDENT RELIEF CLAIMS, WHAT IF YOUR COMMONLAW SPOUSE LEAVES YOU NOTHING IN HIS/HER WILL and SUPPORT DEAD OR ALIVE.

The law has not changed dramatically, although it continues to be applied and interpreted.

The most common scenario is a common law spouse who has been left nothing in their spouse’s Will or no Will was made. If there is no Will, then the provisions of the Succession Law Reform Act apply and one’s estate is divided amongst one’s blood relatives in a specified fashion.

There are fewer explosive bitter gifts one can leave to their common law spouse than preparing no Will at all.  An Estate Litigation Attorney, as referred to south of the border will know this well.

In that situation one frequently encounters a contest between the deceased’s children and the common law spouse who is not their mother.

To assist in understanding what the court will be looking at in determining whether or not somebody was a common law spouse, the court looks to the decision made in the Molodowich v. Pettinen 1980, which was endorsed by the Supreme Court of Canada M. v. H. 1999. In the Molodowich decision, the court set out what was needed to prove that a common law relationship existed. One can do no better than to simply reprint those statements and questions:

A word of caution.  These are just factors that the court will look at.  One does not need to meet all of the indicators as every relationship is different.

1. Shelter:
   a.) Did the parties live under the same roof?

   b.) What were the sleeping arrangements?

   c.) Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:
   a.) Did the parties have sexual relations?  If not, why not?

   b.) Did they maintain an attitude of fidelity to each other?

   c.) What were their feelings toward each other?

   d.) Did they communicate on a personal level?

   e.) Did they eat their meals together?

   f.) What, if anything, did they do to assist each other with problems or during illness?

   g.) Did they buy gifts for each other on special occasions?

3. Services:
   What was the conduct and habit of the parties in relation to:

   a.) Preparation of meals,

   b.) Washing and mending clothes,Shopping,

   c.) Household maintenance,

   d.) Any other domestic services?

4. Social:
   a.) Did they participate together or separately in neighbourhood and community activities?

   b.) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal:
   a.) What was the attitude and conduct of the community towards each of them and as a couple?
6. Support (Economic):
   a.) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

   b.) What were the arrangements concerning the acquisition and ownership of property?

   c.) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children
   a.)What was the attitude and conduct of the parties concerning children?

In August of 2024, Justice H.J. Williams in Cassan v. Giroux, applied this applied this legal matrix against a slightly out of the ordinary fact situation. The surviving common law wife argued that she and the deceased had lived in a conjugal relationship for 16 years. The deceased’s children pointed out that the applicant common law spouse had always maintained her own apartment, neither she or the deceased had ever filed an income tax return showing anything other than a single tax status and indeed the deceased had throughout the relationship continuously had relationships with other women and had made financial provision for some of these other women.

The court went through the evidence, applied the various factors from Molodowich and found despite these negative indicators that the parties indeed had lived in a conjugal relationship, the formal term for living in a common law relationship. Support was ordered.