Estate planning’s silent threat: The unpapered file

Law360 Canada (June 20, 2025, 2:40 PM EDT) --

Kimberly Cura

On June 5, 2025, I spoke as a panellist at the Ontario Bar Association’s webcast, “From Retainer to Reporting Letter: Avoiding Professional Liability and Negligence Claims in Estates Law.” The program included a case law update, a presentation by LAWPRO on the most common claims against lawyers in the area of wills and estates, and a lively discussion among the panellists about common pitfalls faced by lawyers practising in this area.

One of the major themes throughout the program was the importance of papering one’s file. Particularly in the area of wills and estates, documenting client instructions and advice to the client is critical. Often, a lawyer’s file can hold the key to unlocking a testator’s intentions in will challenge or will interpretation cases.

The program was timely for me because, earlier this year, I successfully argued a case at the Court of Appeal for Ontario concerning a rectification application. The application judge’s decision not to rectify the will was upheld by a unanimous panel at the Court of Appeal, in large part because there was insufficient evidence to support the applicant’s position.

In that case, Isard Estate v. Gunn, 2025 ONCA 139, the testator, Patricia (“Paddy”) O’Brien, made a will in February 1996 with the assistance of her lawyer, Lindsey Elwood. The will appointed O’Brien’s long-time partner, Daphne Isard, as the executor of her estate and the beneficiary of certain personal effects. Most unfortunately, O’Brien’s will did not include a residue clause. The “residue” of an estate is what is left over after the estate’s debts and all specific bequests are paid out.

O’Brien died in 2012, and Isard died in 2018. The absence of a residue clause went unnoticed until the executor of Isard’s estate, the Metropolitan United Church, discovered documents showing that O’Brien owned investments worth half a million dollars that formed part of the residue of her estate.

The church brought an application for an order rectifying O’Brien’s will to include a clause that would leave the residue of O’Brien’s estate to Isard. The church asserted that O’Brien intended to leave the residue of her estate to Isard because O’Brien had identified Isard as her “principle heir” [sic] in a letter and “codicil” that she sent to Elwood in 1999.

In the application and at the appeal, I acted for Christopher Gunn, the son and one of the estate trustees for the estate of his father, Michael Gunn, who was O’Brien’s brother and her only surviving next of kin at the time of her death. We argued that the court could not rectify the will because the evidence was insufficient to establish that O’Brien intended for Isard to be the residual beneficiary. We further argued that, in the absence of clear and convincing evidence of the testator’s intentions, the residue should be distributed on a partial intestacy, such that O’Brien’s brother, Michael (i.e., his estate), should receive the residue.

We were successful in obtaining a dismissal of the application and then, the appeal, for the following main reasons:

1. The lawyer, Elwood, had no notes in his file regarding the instructions he received from O’Brien, or the letter she sent him in July 1999;
2. The July 1999 letter and the “codicil” attached to it did not clearly reveal O’Brien’s intentions with respect to the residue of her estate; and
3. In the absence of clear, cogent and persuasive evidence of the testator’s intentions, rectification could not be applied to “read in” a residue clause in O’Brien’s will.

This case represents a grim example of what can go wrong when a lawyer fails to properly paper their file.

If you are an estate trustee or a beneficiary of a will that you believe contains a potential error, our team of expert estate litigators would be pleased to assist.

Kimberly Cura is a partner at Lerners LLP with a practice focused primarily on estates and trusts litigation.

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