Recent Cases


Schaefers Estate - Removing an Attorney for Property

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Nieweglowski Estate - Examining the Solicitor who drafted the Challenged Will

In Nieweglowski Estate, litigation had erupted over Mr. Nieweglowskis will and property that he had transferred before he died. The solicitor who had assisted Mr. Nieweglowski had already produced his files pursuant to an earlier court order. The solicitor was then subpoenaed to give evidence pursuant to Rule 39.03 (examination of a witness before the hearing of a pending motion or application). The solicitor attended at his examination, but refused to give evidence. The solicitor objected on the grounds that the prior order did not expressly provide for his examination. The examining party then sought a court order that the solicitor provide his evidence and that he personally pay the costs of the fruitless examination.

Justice Strathy of the Ontario Superior Court of Justice held that a solicitor was entitled to the protection of a court order before being examined as a witness pursuant to Rule 39.03. Justice Strathy stated that it was not unreasonable for the solicitor to insist upon a court order directing him to attend an examination before giving his evidence about privileged communications with a former client. Accordingly, Justice Strathy ordered that the solicitor be examined regarding matters that would otherwise be privileged or confidential. However, Justice Strathy refused to order costs against the solicitor in respect of the aborted examination.

For lawyers, when faced with a demand to produce their file and/or be examined, the first call to make is to LawPro (the lawyers indemnity insurer) who will provide you with counsel to guide you through the process and attend with you at your examination.


Henry Estate - Summary of Case

James Henry died on May 28, 2005. He had been ill with cancer for several years and had been given palliative care for approximately two months before his death. On May 12, 2005, he signed a will in which he left his estate to his second wife, Consolacion, if she survived him for 30 days, which she did. One of the deceased's adult children from his first marriage, Tyrone Henry, brought an action against Consolacion. The issues before the court were whether the deceased's will was null and void on the basis that the signature on the will was not the testator's, or on the basis that the deceased lacked testamentary capacity or by reason of undue influence on the part of Consolacion.

Justice Newbould of the Ontario Superior Court found that the signature on the will was the signature of the deceased. He accepted the evidence of the solicitor who drafted the will and his assistant that they witnessed the deceased signing the will. The plaintiff put forward no evidence to the contrary, other than his sister and brother's statements that the signature on the will was not their father's. Justice Newbould also rejected the plaintiff's attempt to introduce a report of a handwriting analyst, as it had never been served on the defendant, and the analyst was not able to give evidence.

Justice Newbould found that the deceased had testamentary capacity. The evidence clearly established that he understood and approved of the contents of the will. The court accepted the solicitor's evidence that, the day the he signed the will, the deceased was able to recite from memory the instructions he gave to his solicitor the previous day regarding what was to be included in the will. As well, the court accepted Consolacion's evidence that her husband was coherent and alert the day he signed the will.

Finally, Justice Newbould found that the plaintiff did not prove undue influence on the part of Consolacion: "there is simply no evidence of undue influence nor of any suspicious circumstances surrounding the instructions given by Mr. Henry or his execution of the Will."

As the self-represented plaintiff discovered in this case, will challenges can be very difficult to win. Litigants seeking to overturn a will need to be alert to exactly what evidence is required to prove their case.