The decision by the Ontario Court of Appeal, which upheld the trial decision of Justice Chown in the Stewart Estate v. Stewart 2025 ONCA 575, is a clear lesson that preparing a Will requires the hand of an experienced Wills and Probate Lawyer rather than the casual work by a Jack of all trades lawyer, who drafts wills as a very casual sideline. We encounter this frequently in which potential clients who are only driven by the quoted fee can always find another lawyer who will do it for less.
Our experienced Will and Estate lawyers will ask the tough questions, what if? When drafting Wills and Power of Attorney, our job is to be the eternal pessimist in coming up with hypothetical scenarios that could befall the client. That is the drafting lawyer’s job and ignoring these questions simply leads to a few dollars saved at the time of drafting the Will and many thousands of dollars and expenses trying to fix the problem after death. In the Stewart case, a husband and wife had 13 children. In 1989, the husband who owned two farms drafted a Will and made a bequest of the farms to two of the children based upon the payment of what was then their market value. After the parents had died many years later, the farms had skyrocketed in value and there were huge capital gains taxes in excess of $600,000 to be paid. There was nowhere else other than selling the farms for the estate to be able to come up with the money to pay the taxes. Many questions arose, one of which was whether or not despite the fact that there were specific bequests of the farms, could the estate trustee sell the farms to pay the taxes. Selling the farms would have of course frustrated the clear intention of the Will that the two sons were to be benefited far in excess of their 11 siblings. However, where else was the money to be obtained, and the estate trustees aka executors would have faced personal liability for not ensuring that the valid debts of the estate were paid.
The court in the end ordered that the farms could be sold, even though the two beneficiary sons had proposed paying the tax liability themselves in an effort to retain the farms. This is an unusual scenario for Estate Lawyers. This required the input of experienced Estate Litigation Lawyers to convince the court of the only possible solution. All of this could have been avoided if the client had hired an experienced Wills Lawyers Brampton who would have asked the pessimistic hypothetical questions that are necessary to explore.
This complexity required an application to the court to provide guidance on what the estate trustees could and could not do. From a cost perspective, an extremely expensive proposition, but a critical one.
