Estate Planning’s Silent Threat: The Unpapered File

This article was originally published in Law360 Canada.

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 amongst 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 Paddy’s long-time partner, Daphne Isard, as the executor of her estate and the beneficiary of certain personal effects. Most unfortunately, Paddy’s will did not include a residue clause. The “residue” of an estate is what is leftover after the estate’s debts and all specific bequests are paid out.

Paddy died in 2012, and Daphne died in 2018. The absence of a residue clause went unnoticed until the executor of Daphne’s estate, the Metropolitan United Church, discovered documents showing that Paddy 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 Paddy’s will to include a clause that would leave the residue of Paddy’s estate to Daphne. The Church asserted that Paddy intended to leave the residue of her estate to Daphne because Paddy had identified Daphne as her “principle heir” [sic] in a letter and “codicil” that she sent to Mr. 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 Paddy’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 Paddy intended for Daphne 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 Paddy’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, Mr. Elwood, had no notes in his file regarding the instructions he received from Paddy, or the letter Paddy sent him in July 1999;

2. The July 1999 letter and the “codicil” attached to it did not clearly reveal Paddy’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 Paddy’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.