Putting Calmusky to Bed: A Case Comment on Kukna Estate v. Giasson, 2026 ONSC 1842

Overview

Since it first came out, most practitioners I know have regarded Calmusky v. Calmusky, 2020 ONSC 1506, as wrongly decided. The decision applied the presumption of resulting trust from Pecore v. Pecore, 2007 SCC 17, to a beneficiary designation on a registered account, a conclusion that was difficult to reconcile with the governing legislation and with the way financial advisors and estate planners have long understood these instruments to work. But wrongly decided or not, Calmusky was considered good law, and it imposed a caveat on conversations about beneficiary designations. We could tell clients that naming a beneficiary on a TFSA or RRIF would enable the funds to pass outside the estate, but we had to add that there was an Ontario decision suggesting otherwise, and that the issue was not fully settled.

Mak Estate and Fitzgerald brought important clarifications. Fitzgerald settled the question here in Nova Scotia. Elsewhere in Canada, the issue remained somewhat unsettled.

In Kukna Estate v. Giasson, 2026 ONSC 1842, Justice Horvat of the Ontario Superior Court has now put Calmusky to bed. She departs from it directly and with a careful legislative analysis that should give practitioners comfort the issue is resolved.

I. The Facts

The background is straightforward. Ernie Kunka and Rose Marie Olar were common-law partners for over thirty years. Marie had two children from a previous relationship, Ann-Marie Mills and Michael Olar. Ernie was their stepfather.

In October 2021, Marie and Ernie made spousal wills leaving their assets to each other, with a further gift over to Mills and Olar. Marie died the following month. Ernie received her life insurance, TFSA, and RRIF by right of survivorship and as the designated beneficiary.

Following Marie's death, Ernie became close with a long-time friend, Angele Giasson. In January and March 2023, he designated Giasson as the beneficiary of his TFSA and RRIF, replacing Mills and Olar. Giasson made no financial contributions to either account. Ernie also updated his will, but the will did not mention the TFSA or RRIF, and it continued to name Mills and Olar as his sole beneficiaries.

Ernie passed away in August 2023. His will was not challenged. Mills, as estate trustee, brought this application seeking a direction from the court that the TFSA and RRIF should revert to the estate, either under the presumption of resulting trust or on the basis of undue influence.

She failed on both grounds.

II. The Conflict: Calmusky and Mak Estate

Pecore is the starting point: a gratuitous transfer from a parent to an adult child carries a presumption of resulting trust, and the child bears the burden of proving the parent intended a gift.

In 2020, Justice Lococo of the Ontario Superior Court extended the reach of Pecore in a way that few found persuasive. In Calmusky, he applied the presumption of resulting trust to a beneficiary designation on a RIF. The reasoning focused on the evidentiary challenge common to both contexts: in both cases, the deceased is no longer available to explain what they intended, and the person receiving the funds is better positioned to bring evidence of the circumstances. On that basis, Justice Lococo concluded that the presumption should apply.

The logic had a surface appeal. But it ignored the fundamental difference between the two instruments. A joint account gives the transferee immediate access to the funds during the transferor's lifetime. A beneficiary designation does not. The designated beneficiary has no access, no control, and no entitlement until the account holder dies. The account holder can change the designation at any time, for any reason, without the beneficiary's knowledge or consent.

Applying Pecore to that arrangement was, in the view of many practitioners, an error, and a consequential one at that. If naming a beneficiary on a registered account gave rise to a presumption of resulting trust, then a validly designated beneficiary bore the burden of proving the account holder's intention. For financial advisors and estate planners who counsel clients to use beneficiary designations precisely because they pass assets outside the estate, Calmusky undermined the very premise of the advice.

A year later, Justice McKelvey of the same court said what many were thinking. In Mak (Estate) v. Mak, 2021 ONSC 4415, he expressed doubt that the resulting trust doctrine applied to beneficiary designations at all. The whole point of naming a beneficiary, as he put it, is to specify what is to happen to an asset upon death. That is a testamentary act, not an inter vivos gift. The resulting trust presumption has no application to it.

Not long after, Justice Murray of the Nova Scotia Supreme Court took up the question in Fitzgerald Estate v. Fitzgerald, 2021 NSSC 355, preferred Justice McKelvey's reasoning, and grounded the analysis in the statutory framework governing registered plans. Fitzgerald settled the law in Nova Scotia. In Ontario, however, Calmusky and Mak Estate remained on the books as two irreconcilable decisions from the same court.

III. Justice Horvat's Analysis

Justice Horvat preferred the court’s reasonong in Mak Estate. Her own analysis does not rest on a single ground.

She began with the structural distinction. The joint bank account in Pecore was not a registered account. There was no ability to designate a beneficiary. The adult child was added as a joint account holder and had access to the funds immediately, during her father's lifetime. A beneficiary designation on a TFSA or RRIF is different in kind. The designated beneficiary gains no inter vivos control. The funds remain in the account holder's name, under the account holder's sole authority, until death. The account holder can revoke or change the designation at any time. The beneficiary's entitlement crystallizes only on the account holder's death, and only if the designation has not been changed by then.

She then turned to the legislation. Part III of Ontario's Succession Law Reform Act permits individuals to designate a beneficiary of a "plan", defined to include RRSPs, RRIFs, and TFSAs, either by signed instrument or by will. Under section 53, the institution administering the plan must pay the funds to the designated beneficiary upon the plan holder's death. The legislation, in Justice Horvat's view, signals that registered accounts are meant to be treated according to their beneficiary designations, not as part of a resulting trust for the benefit of the estate.

This point was reinforced by the Ontario Court of Appeal's decision in Amherst Crane Rentals Ltd. v. Perring (2004), 241 DLR (4th) 176, which held that the proceeds of an RRSP do not form part of the estate but transfer directly to the designated beneficiary on the account holder's death. If the proceeds of a registered account were estate property, section 72(1)(g) of the SLRA would be meaningless. That provision includes amounts payable under beneficiary designations in the value of an estate for dependants' relief purposes. It only makes sense if those amounts do not already form part of the estate.

Alger v. Crumb, 2023 ONCA 209, reinforced the point. The Court of Appeal treated the designation of beneficiaries on RRIF and TFSA plans as testamentary dispositions requiring express revocation under Part III, and distinct from other testamentary dispositions that may be revoked by a general revocation clause in a will.

Justice Horvat also noted, and this is significant, that Calmusky did not consider either the provisions of the SLRA or the Court of Appeal's decision in Amherst Crane. It was decided before Alger. In these circumstances, Justice Horvat concluded that Amherst Crane should be preferred over Pecore when registered accounts with beneficiary designations are at issue.

In adopting this approach, Justice Horvat also endorsed the reasoning in Fitzgerald. The analysis there had done much of the statutory work her own decision built upon.

IV. Implications for Practitioners

The designation will be respected, but document the intention anyway. Kukna confirms that a validly made beneficiary designation on a registered account is a testamentary disposition. It directs for the funds to pass outside the account holder’s estate. The onus falls on the party challenging the designation to prove that the account holder intended otherwise. That said, a brief note in the estate planning file explaining why the client chose a particular beneficiary, or a memorandum accompanying the will, can only strengthen the position if a challenge arises.

The will and the designation should be considered together. One of the striking features of Kukna is the gap between Ernie's will, which named Mills and Olar as beneficiaries, and his TFSA and RRIF designations, which named Giasson. Justice Horvat treated this gap as evidence of intention: Ernie deliberately kept the registered accounts separate from his will. That may not always be the inference a court draws. Practitioners should ensure that clients understand the relationship between their will and their beneficiary designations, and that the two instruments are aligned.

The caveat can come off. Kukna does not merely disagree with Calmusky. It departs from it on legislative grounds that Calmusky never addressed. Three trial courts across two provinces have now declined to apply Pecore to beneficiary designations, and the Ontario Court of Appeal's reasoning in Amherst Crane and Alger supports the same conclusion. No appellate court has addressed the question directly, but Calmusky now appears to be an abberation. For practitioners who have been hedging their advice on beneficiary designations, Kukna should provide real comfort.

For Nova Scotia practitioners, Kukna is welcome confirmation. Fitzgerald has been settled law for some time. An Ontario court has now arrived at the same conclusion, by similar reasoning, and with reference to Justice Murray’s reasons in Fitzgerald. So while it remains prudent to document the intention behind any given designation, practitioners can take heart in knowing that beneficiary designations can stand on their own.

V. Conclusion

Calmusky was not appealed, and it will not be. The decision remains on the books as a matter of record, but after Mak Estate, Fitzgerald, and now Kukna, it no longer stands as good authority. It should now be abundantly clear that a beneficiary designation on a registered account is a testamentary disposition, and that it does what it says it does.

Drawing the Line: A Case Comment on Daniels Estate v. Darling, 2024 NSSC 103

Overview

I was preparing for a contested passing of accounts last week and found myself reviewing the court’s decision in Daniels Estate v. Darling. It is not a new decision, but it remains a very useful one. It addresses important questions about privilege in the context of a probate solicitor’s file, which are often misunderstood, or at least considered to be a grey area of sorts.

The question is this: when a beneficiary objects to an estate’s legal bills on a passing of accounts and demands production of the estate’s legal files, what is the estate obliged to produce, and what may it withhold?

Justice Gatchalian’s reasons in Daniels Estate provide clear and direct guidance on these issues. The proctor’s file and the litigation counsel’s file are fundamentally different, and so the rules of privilege and disclosure that attach to each are also quite different.

Background and Facts

The Personal Representatives of the Estate of Leota Maie Daniels applied to pass the accounts of the Estate under section 71 of the Probate Act. Carol Darling, one of the beneficiaries, objected to the application. Among her objections was a challenge to the amount of the legal bills the Estate had incurred, and in support of that challenge she sought production of the files of the Estate’s lawyers.

Two lawyers from the same firm had been involved in the Estate’s affairs. One had acted as proctor — solicitor to the Estate in the administration. The other had acted as litigation counsel for the Estate when Ms. Darling brought a contested proceeding against it in September 2021. That earlier litigation had run its course by the time the passing of accounts came on. It had not gone well for Ms. Darling: the Estate had moved successfully to enforce a settlement, and Ms. Darling had been ordered to pay $16,000 in costs.

The Estate agreed to produce the proctor’s file. It claimed solicitor-client privilege over the litigation file. Ms. Darling moved to compel production of both.

The Proctor’s File

The first principle is one most estates practitioners know intuitively, even if they have not had occasion to articulate it. A trustee cannot assert solicitor-client privilege against a beneficiary over advice obtained for the administration of the trust. The trustee and the beneficiary share a common interest in that administration, and the legal advice taken in furtherance of it is, in a meaningful sense, taken on the beneficiary’s behalf and at the beneficiary’s ultimate expense. The principle traces back to Lord Wrenbury in O’Rourke v. Darbishire and has been applied consistently across the common law provinces.

The court’s treatment of this branch of the motion is short, because the Estate did not contest it. The proctor’s file was produced. For practitioners, the takeaway is that a proctor’s file – and all its contents – should be considered available and subject to review by the estate’s beneficiaries.

The Litigation File

The second principle is where things get more interesting. The common interest that compels production of the proctor’s file does not extend to communications generated in the course of litigation between the trustee and a beneficiary. Where the trustee and the beneficiary are adverse parties, there is no common interest to share. It follows that the file the trustee’s litigation counsel builds in defending against the beneficiary’s claim is privileged in the ordinary way. The court put the distinction succinctly: a beneficiary is entitled to opinions taken in the course of determining the proper distribution of the trust, but not to opinions procured by the trustee for the trustee’s own protection in relation to claims made against them.

On the facts of Daniels Estate, the litigation file fell squarely on the protected side of the line. Litigation counsel had been retained for one purpose — to defend the Estate against Ms. Darling’s contested proceeding — and the parties had been adverse in interest from the moment that proceeding was filed. The court therefore recognized the privilege.

The Bad Faith Argument

There is a recognized qualification to this general rule, and Ms. Darling tried to invoke it. Where a beneficiary alleges bad faith or breach of fiduciary duty against the trustee, documents relevant to those claims may have to be produced notwithstanding the trustee’s privilege. The qualification is real and well established. But on these facts the court was not prepared to apply it, and the reasons it gave are also quite interesting.

The first difficulty was with the terms of the pleadings. Ms. Darling had not pleaded bad faith in her Notice of Objection. She had pleaded breach of fiduciary duty in connection with the commission claimed by the Personal Representatives, and she invited the court to read that broader allegation into her narrower pleading. The court was prepared to assume the point in her favour for the sake of argument, but this assumption did not save her, because the second difficulty was an evidentiary one. When asked at the hearing to point to anything in the record that might support the allegation of bad faith, her counsel could not. Our Court of Appeal made clear in Intact Insurance Company v. Malloy that an allegation, however carefully drafted, is not by itself a basis for a production order. Without an evidentiary foundation, a request for production becomes a fishing expedition.

In reply submissions, Ms. Darling’s counsel asked the court to look through the affidavits filed in the earlier appeal to find a basis for the allegation in those materials. The court declined, and rightly so. The onus was Ms. Darling’s, the suggestion came too late for the Estate to respond, and it was not the court’s role to build her case for her.

Why the Decision Matters

The boundary between the proctor’s file and the litigation file is clear in theory but sometimes blurrier in practice. Beneficiaries assume that because the estate’s legal fees come out of the residue, they are entitled to read everything the estate’s lawyers have written. The reality is, however, more nuanced.

What is more, Daniels Estate provides useful guidance on the bad faith qualification. That qualification exists for a reason and serves a real purpose, but it is narrow, and the court will not let it become an avenue for general access to litigation files. A bare pleading is not enough. An evidentiary record the court can actually see is required, and the burden of establishing it sits with the party seeking production.

Takeaways for Practitioners

A few practical points come out of all of this.

First, the proctor’s file and the litigation file should be kept structurally separate from the moment a contested proceeding involving the estate materializes. Where a single firm — or a single lawyer — wears both hats, the file management has to reflect the distinction from day one. Separate file numbers, separate billing entries, separate correspondence. The cleaner the structural separation, the cleaner the eventual privilege analysis on the passing of accounts will be.

Second, on a contested passing of accounts, proctors should be prepared to produce their files.

Third, claim privilege over the litigation file with confidence. A trustee defending against a beneficiary’s claim is entitled to the same confidential relationship with counsel as any other litigant, and Daniels Estate confirms this.

Fourth, if you act for a beneficiary and you intend to allege bad faith as a basis for production, plead the allegation directly and put the evidence before the court. The evidence you rely on has to be before the court on the motion record, and not buried in affidavits filed in a different proceeding that the motions judge has not been asked to read.

Conclusion

This distinction will only become more important as estates continue to become larger, more complicated, and more contentious. The proctor works for the estate and, through the estate, for the beneficiaries. Litigation counsel works for the trustee against the claimant. The privilege follows the relationship, and we as estate practitioners should always remain cognizant of which “hat” we are wearing at any given time.

No Strings Attached: A Case Comment on Foster Estate v. Foster, 2026 NSSC 91

In Foster Estate v. Foster, a Nova Scotia executor claimed a testamentary gift of five percent of the estate, under a clause drafted to characterize what might otherwise be a taxable commission as a tax-free bequest. The beneficiaries said he had not earned it.

Justice Gatchalian held that the statutory commission regime does not apply to gifts. A gift is a gift — not compensation — and the amount of it is not subject to the court's review.

But the court did not stop there. Having found that the same executor failed to make interim distributions for over two years, the court ordered him to compensate the beneficiaries for the delay under section 71(1) of the Probate Act. The result is a holistic one: the court honoured the testator's intention while holding the executor accountable for how the estate was actually administered.

I. The Facts

Ruth Charlene Foster died on August 29, 2020. Her estate was not complicated. Once assets were liquidated, it consisted of approximately $1.2 million in cash, with no real property. The will divided the residue equally among her three children — Michael, Bonny, and Robert — and named Michael as executor.

The will gave Michael broad discretionary authority. It also contained what the court called the "Executor's Gift Clause", stating that the executor was to receive five percent of the total value of the assets and income of the estate "as a gift instead of compensation or commission for acting as my executor, to theirs absolutely." The gift was worth $60,329.64.

The family was not close. Bonny had been estranged from Michael since her teenage years. Neither Bonny nor Robert returned Michael's calls when their mother died. Within four months, they had retained counsel. Michael lived in Ontario, worked full-time, and administered the estate from a distance.

Bonny and Robert objected to the passing of accounts. They argued that Michael should be denied the gift, and that he should pay them for lost investment income caused by delay, failure to invest, and flawed tax decisions.

II. A Gift Is Not a Commission

The core question was whether the statutory commission provisions apply to the Executor's Gift Clause.

The court held they do not. Section 76 of the Probate Act governs commissions. Section 77 distinguishes between a commission and "a provision in a will for specific compensation to an executor." Subsection 62(2) of the Regulations implies that a compensation agreement incorporated in a will is binding on the court and the beneficiaries. Read together, the statutory scheme subjects commissions to judicial oversight but treats testamentary compensation differently.

The language of the clause itself reinforced the point. Mrs. Foster used the mandatory "shall." The gift was "instead of compensation or commission" and "to theirs absolutely," with no conditions and no standard the executor was required to meet. The phrase "for acting as my executor" required only that Michael act in the role.

Bonny and Robert pointed to the drafting lawyer's discovery evidence that he had suggested the clause because a gift is not taxable as income. The court considered this as part of the surrounding circumstances, finding that Mrs. Foster intended a gift and not a commission dressed up in different language.

The court was careful to note what this does not mean. An unconditional gift does not place the executor beyond accountability. The court retains jurisdiction under section 71(1) to order payment to beneficiaries for misconduct, neglect, or default. The gift operates outside the commission regime. It does not operate outside the broader powers of the court under the Probate Act.

Still, the practical effect is significant. Under the commission regime, the court applies the factors in section 62 of the Regulations and exercises discretion over the amount of commission awarded. Under a gift clause, the entitlement is fixed by the will. The court can only intervene on the higher threshold of misconduct, neglect, or default. That is a meaningful difference. So drafters who include this language should understand the shift in accountability it creates, and consider whether it is appropriate in the circumstances.

III. The CRA Delay

By November 2021, the estate's tax filings were complete and no amounts were owing. The estate could have moved toward distribution.

But it did not.

In February 2022, Michael learned of a CPP reimbursement of $734.26 and instructed the accountant to file an amended T1. In July, he discovered $206.25 in unreported interest income and instructed her to file an amended T3. The accountant's advice on the interest discrepancy was practical. She explained the tax would amount to about $40, and said she would be inclined to let it go. Michael reported it anyway. The combined benefit to the estate from both amendments was $464.75.

What followed was two years of CRA processing delays. The first amendment was rejected because the accountant had signed it instead of the executor. The second was lost entirely — at one point, CRA told Michael the trust return had never been filed. He could not reach the Amendment Department directly; its staff were working remotely without phone lines. A "self-imposed deadline" of December 7, 2023 passed without result. The reassessment finally arrived on March 15, 2024, with a refund cheque for $44.66.

The court characterized Michael's tax decisions as conservative but not so unreasonable as to warrant intervention. It accepted that the CRA delays were unforeseeable. The standard of review required deference, and the court afforded it.

IV. The Failure to Distribute

This is where the court intervened.

Michael acknowledged that he did not consider making an interim distribution until April 2023 — over two years after obtaining the Grant of Probate. He did not weigh the options and conclude the timing was wrong. Apparently, he did not consider the question at all.

The standard of review for an executor exercising absolute discretion is high. The court should intervene only where the decision is so unreasonable that no honest or fair-dealing trustee could have reached it, where the executor considered irrelevant factors, or where the executor gave no consideration to exercising the discretion at all. It was the third category that applied here.

By March 2022, the estate account held approximately $1.2 million in cash, earning no interest. The tax filings were complete. The estate was beyond the executor's year. The only outstanding liabilities — Michael's compensation claims and anticipated legal fees — could have been addressed by a holdback of approximately $300,000. The accountant had advised Michael that he could distribute most of the estate. He did not act on her advice. In fact, he did not even register it as advice — he described it at trial as an "off the cuff remark."

The court concluded that a distribution of $250,000 to each beneficiary should have been made no later than April 2022. It found the executor’s failure to do so was so unreasonable that no fair-minded trustee would have made that decision in the circumstances.

Importantly, the court did not reduce the executor's gift, for it had already held that the gift was unconditional. Instead, it ordered Michael to pay an amount to Bonny and Robert under section 71(1) of the Probate Act, in an amount to be determined at a subsequent hearing.

V. Implications for Practitioners

The takeaway is that drafters should think carefully about "gift in lieu of commission" clauses. Foster confirms that this language works — the court will treat the entitlement as a testamentary gift, not a commission subject to judicial oversight. But while the clause exists to circumvent taxation on what is functionally executor compensation, it has the secondary effect of insulating the executor's entitlement from discretionary review. Whether that secondary effect is a feature or an unintended consequence will depend on the circumstances. Drafters should be alive to both effects when they consider this language.

Executors must actively consider interim distributions. The lesson of Foster is not that Michael made the wrong decision — it is that he failed to act at all. An executor with absolute discretion is entitled to a wide berth, but doing nothing is not an appropriate exercise of discretion. The decision to pursue $464 in refunds in a straightforward cash estate — against the accountant's advice — triggered a chain of delays that kept the entire estate tied up for two additional years.

And section 71(1) of the Probate Act has teeth. Even where a gift clause removes the commission from scrutiny, the court retains supervisory jurisdiction over the administration more generally. So beneficiaries who cannot challenge the quantum of the gift may still seek a remedy for how the estate was handled.

VI. Conclusion

In Foster, the court recognizes that an executor’s entitlement to a gift operates separate from their fiduciary obligations. The result is a holistic analysis that respects the clear wording of the will while still holding the personal representative accountable.

Capacity Is Not a Number: A Case Comment on D.R. v. A.R., 2026 ONSC 796

Overview

Last week’s STEP Atlantic seminar was one of the best in recent memory, and it dug into this case which I found fascinating. D.R. v. A.R. is an Ontario decision — the applicable legislation is the Substitute Decisions Act, 1992 — but the questions it raises about expert capacity evidence, the limits of cognitive testing, and the distinction between needing help and lacking capacity are universal.

The decision rewards careful reading. Justice Dietrich of the Ontario Superior Court (Estates List) dismissed an application to appoint a guardian of property for an 86-year-old widow with mild cognitive impairment and a documented history of signing documents she did not understand. She did so not because the court was satisfied that the respondent had capacity in any robust sense, but because there was a less restrictive path available — one that respected her autonomy to the fullest extent possible.

The result is interesting. What I found most interesting was how the court used the expert evidence to get there.

Background and Facts

Ms. A.R. is the 86-year-old matriarch of a wealthy family. She and her late husband accumulated substantial assets through an import and retail business and through real property development. Her husband managed the business affairs throughout their marriage. He suffered a debilitating stroke in November 2023 and died in October 2024. On his death, Ms. A.R. inherited his estate, which included shares worth tens of millions of dollars.

Before turning to the facts, I want to note an interesting procedural point. At the parties’ request, the court granted a sealing order directing that certain confidential information be kept from the public record. The reasons are anonymized: the parties are identified only by initials, and the family companies by fictional names. This is an exceptional step — our courts operate on a presumption of openness — and the fact that all parties sought it, and that the court granted it on those terms, says something about the nature of what was at stake. It also serves as a reminder that capacity proceedings involve real people in genuinely vulnerable circumstances, and that the procedural architecture of the litigation should reflect that.

The background is complicated by family conflict. One son, S.R., lived in the family home and was making large cash withdrawals from Ms. A.R.’s accounts, which she acknowledged without being able to explain. Another son, A. (B.) R., had settled prior litigation against his parents and then — the day before his father’s death — obtained Ms. A.R.’s signature on documents giving him control over a company holding a New Jersey judgment worth tens of millions of U.S. dollars. Ms. A.R. later acknowledged she had not understood what she signed.

The Attorneys for Property — appointed under a 2014 continuing power of attorney — brought the application to have a professional guardian appointed. Ms. A.R. opposed it. She had also, in the intervening period, attempted to revoke the 2014 power of attorney and retained new counsel. The validity of the revocation turned, in part, on her capacity. The court was therefore required to address capacity at several levels: capacity to manage property, capacity to give and revoke a power of attorney, and capacity to retain and instruct counsel.

The Three Assessments

The medical evidence is the heart of the case. There were three assessments, conducted by two different psychiatrists over a period of eight months. Their findings did not contradict each other in the way that competing experts typically do — but they did not align in a way that made the court’s analysis straightforward, either.

The First Assessment — Dr. K. Shulman, December 2024. This assessment was arranged by Ms. A.R.’s then-counsel, unbeknownst to the Attorneys for Property, less than two months after her husband’s death. Dr. K. Shulman concluded that Ms. A.R. was clearly incapable of managing her own property and was extremely vulnerable to influence. On the MMSE, she scored 22 out of 30, consistent with mild cognitive impairment. She could not identify the value of the family companies, could not recall resigning as a director, and could not identify her own lawyer. She acknowledged, of her own accord, that she was not capable of managing the businesses or finances on her own, and that she needed independent counsel.

But there is a detail here that is worth emphasizing. Dr. K. Shulman also noted, in that same report, that Ms. A.R.’s difficulties had more to do with her lifelong dependence on her husband to manage their affairs than with any major neurocognitive disorder. There was no Alzheimer’s diagnosis. No delusions. The impairment was mild. The functional deficits were real — but their source was, at least partly, contextual.

The Second Assessment — Dr. K. Shulman, April 2025. This assessment was arranged jointly by counsel for both sides, and the questions put to the doctor were different. This time, he was asked to assess Ms. A.R.’s capacity to retain and instruct counsel and to appreciate the nature of the proceedings against her. He found her capable. She could process the information her lawyers presented. She could articulate the advantages and drawbacks of the options available to her. She could express her wishes clearly and consistently.

Her cognitive scores were unchanged. What had changed was the question.

The Third Assessment — Dr. R. Shulman, August 2025. Ms. A.R.’s counsel independently retained a second psychiatrist, Dr. R. Shulman. He administered both the MMSE (again 22/30) and the MoCA (17/30, consistent with mild cognitive impairment). His mandate was to assess capacity to manage property and capacity to give and revoke a power of attorney.

His conclusions were more granular than those in Dr. K. Shulman’s first report. He acknowledged the cognitive impairment. He acknowledged the risk that it created. But he drew a distinction the first report had not drawn so cleanly: Ms. A.R. had the cognitive ability to process, retain, and articulate the information required to manage her property — she simply required assistance to plan and carry out decisions. She could decide. However, she could not execute independently.

With respect to the power of attorney specifically, Dr. R. Shulman walked through the statutory criteria in s. 8 of the SDA and found them satisfied. Ms. A.R. knew what her property was and its approximate value. She understood what an attorney for property could do on her behalf. She appreciated the risk of misuse. She could provide cogent reasons for why she would not appoint either of the sons she distrusted. Her justification was consistent throughout the assessment.

The Court’s Analysis

Justice Dietrich read the reports cumulatively, not as a competition between duelling experts. Both assessors agreed on the central facts: mild cognitive impairment, vulnerability to undue influence, and a need for assistance. What they disagreed on — or what the first report simply did not address — was whether needing assistance is the same thing as lacking capacity.

It is not. And that distinction carried the case.

The cross-examination of Dr. K. Shulman was pivotal. He conceded, under questioning, that what Ms. A.R. had actually told him was that she needed assistance to manage her affairs — not that she needed someone else to make decisions for her. The leap from “I need help” to “I am incapable” had been made in the framing of the report, not in what she said. That concession undermined the foundation of the first report without discrediting the doctor.

The court also gave weight to the fact that Ms. A.R.’s expressed wishes had been consistent throughout: she wanted her autonomy back, she wanted new attorneys she trusted, she did not want the Attorneys for Property or their proposed guardian. That consistency — expressed clearly across multiple assessments and multiple months — was itself evidence of functional capacity.

Still, the court was not simply deferring to her preferences. Under s. 22(3) of the SDA, a guardian shall not be appointed if the need for decisions can be met by a less restrictive alternative. The court found that alternative in a new power of attorney, executed with the assistance of independent counsel. That path would give Ms. A.R. the support both experts said she needed, while preserving her right to choose who provided it. Accordingly, the application was dismissed.

Takeaways for Practitioners

D.R. v. A.R. is useful to planners and litigators alike, as it helps us to better understand the role and limitations of expert evidence in capacity proceedings.

The question put to the assessor shapes the answer. The first report found incapacity. The second found capacity to instruct counsel. The third found capacity to give a power of attorney. These are not contradictory findings — they are answers to different questions, applied to a person whose cognitive profile was consistent across all three assessments. Before retaining an expert in a capacity proceeding, counsel should give a great deal of thought to the precise questions they will be asking.

Cognitive test scores are not a proxy for legal capacity. Ms. A.R. scored 22/30 on the MMSE in December 2024. She scored 22/30 again in August 2025. Her cognitive state did not change. The legal conclusions drawn from that state changed significantly, because the legal questions changed. Scores matter, of course, but they are not determinative on their own. Nor should they be.

Cross-examination of capacity assessors is critical. The concession extracted from Dr. K. Shulman — that Ms. A.R. had described needing assistance, not needing a substitute decision-maker — was the turning point of the case. It was available in the first report for anyone who read it carefully. Good cross-examination does not always require a contradiction; sometimes a simple clarification can be just as effective.

Context contaminating the assessment is a real risk. The first assessment was conducted less than two months after Ms. A.R.’s husband of sixty years had died. Her husband had managed all of their business affairs throughout their marriage. Dr. K. Shulman himself noted that her functional limitations were partly attributable to that lifelong reliance, not to cognitive decline alone. Timing matters. Grief, disorientation, and situational overwhelm are not equivalent to incapacity, and an assessment conducted in the immediate aftermath of a major loss should be read with that in mind.

The least restrictive alternative principle has teeth. In Ontario, the SDA prohibits guardianship where a less restrictive alternative is available. Nova Scotia’s Adult Capacity and Decision-making Act reflects similar principles. The takeaway for practitioners on both sides of these applications is the same: the question is not just whether the respondent lacks capacity, but whether the remedy sought is the minimum intervention necessary. A well-structured power of attorney, made with independent counsel, may often be that minimum. Guardianship (or representation, as it is called here in Nova Scotia) is a blunt instrument and should be used with restraint.

For planners: document the capacity conversation. Ms. A.R.’s situation — a surviving spouse who relied entirely on her husband to manage substantial business and financial affairs — is not unusual. The transition from spouse to sole decision-maker can be abrupt, and the window for sound planning is often narrow. Practitioners acting in estate planning matters should consider capacity documentation proactively when the circumstances call for it: not as a defensive exercise, but as part of good practice. Had Ms. A.R.’s own testamentary and planning intentions been documented while she had capacity to do so without dispute, this proceeding might have looked very different.

Conclusion

D.R. v. A.R. is a well-reasoned decision that takes the expert evidence seriously without treating it as dispositive. After all, the judge is the final arbiter of capacity.

Justice Dietrich’s analysis demonstrates that capacity is not a binary finding, that the same person can have capacity for some purposes and not others, and that the court’s role is to find the path that protects the vulnerable while respecting what autonomy remains. These are universal principles that should inform all capacity matters.

Tale as Old as Time: A Case Comment on Cunningham v. Cunningham, 2026 NSSC 81

Overview

In Cunningham v. Cunningham, Justice Bodurtha of the Nova Scotia Supreme Court applied the well-established Pecore resulting trust framework to a family property dispute here in Lunenburg County. The case will be of particular interest to local practitioners: the property at issue sits in Pleasantville, the hearing took place in Bridgewater, and the facts reflect the kind of informal family estate planning that is common in rural Nova Scotia. The decision is a clean, practical application of settled law and a cautionary tale about what happens when estate plans rest on trust alone.

I. The Facts

The facts are straightforward and, for anyone who practises in this area, immediately recognizable.

Edythe Woodworth had been engaged in estate planning for years, transferring assets to avoid probate fees and ensure a fair distribution among her family. In 2003, she transferred property in Pleasantville into the joint names of herself and her daughter, Anne Cunningham.

In the spring of 2023, Anne and Edythe wanted to give Anne's son, Stephen, fifteen acres of the property. To accomplish this, the property needed to be surveyed, subdivided, and migrated to the Land Registration system. The plan was to convey the entire property to Anne's daughter, Rose, who had real estate experience and could manage the process. Rose would subdivide Stephen's parcel, convey it to him, and reconvey the remainder to the Applicants.

On May 16, 2023, a quit claim deed was signed, transferring the property to Rose. No consideration was paid. No written agreement documented the arrangement.

Rose never completed the subdivision. She never reconveyed the property. The Applicants applied to the court for a declaration that the property was held on a resulting trust.

II. The Decision

Justice Bodurtha found for the Applicants. His analysis rested on two pillars: credibility and the Pecore presumptions.

On credibility, the evidence was one-sided. Anne's testimony about the family's intentions was consistent and unshaken on cross-examination. She was confronted with text messages and a birthday card that, on their face, could be read as suggesting a gift to Rose. She explained each one without wavering: the property was intended for both Stephen and Rose, but only after the Applicants had passed. Stephen was to receive his fifteen acres now. That was the plan.

Stephen corroborated this account. When asked what Rose had told him about the quit claim deed, his answer described precisely the arrangement the Applicants alleged: Rose was to subdivide, convey Stephen's parcel, and reconvey the rest.

Rose did not deny it. When asked whether she had heard Stephen's testimony, she acknowledged it. When asked whether he had accurately described the plan, she said she could not recall exactly, but that it was "something similar to that." That is not a denial. The court treated it accordingly.

Rose's own conduct told the same story. Before the deed was even signed, she contacted a surveyor and advised Stephen. After the signing, she continued communicating with surveyors through the summer of 2023. If Rose believed the property was a gift to her alone, there was no reason for her to be lining up surveyors to subdivide Stephen's parcel.

On the law, Justice Bodurtha applied Pecore v. Pecore in a straightforward manner. Rose was an independent adult child. The transfer was gratuitous. The presumption of resulting trust applied. The presumption of advancement did not. Rose failed to rebut the presumption. The court ordered reconveyance.

III. Implications for Practitioners

Cunningham is an interesting decision not because it breaks new ground, but because it illustrates settled principles operating on facts that local practitioners will encounter regularly. Several practical points deserve attention.

Put it in writing. The Applicants won this case. But they won it the hard way—through litigation, credibility findings, and the application of legal a presumption. The entire dispute could likely have been avoided with a written trust agreement or, at minimum, a letter or declaration documenting the parties' intentions. The absence of any written record was, as Justice Bodurtha noted, a central feature of the case. Practitioners facilitating family transfers should insist on a written instrument, even—and perhaps especially—when the parties trust each other.

The quit claim deed is bare. Rose hired a lawyer to prepare the deed. That lawyer prepared a quit claim deed transferring the property outright, with no conditions, no trust terms, and no written acknowledgment of the underlying arrangement. The deed did exactly what it said on its face: it conveyed the property to Rose. The Applicants then had to go to court to prove that the deed did not mean what it appeared to mean. A properly structured conveyance, with accompanying documentation confirming the intention behind the transfer, would have protected the Applicants from the outset.

Conduct speaks. Justice Bodurtha placed significant weight on Rose's pre- and post-transfer conduct. Her communications with surveyors, her texts to Stephen, and her failure to deny his account all pointed in the same direction. Practitioners advising clients in resulting trust disputes should gather this kind of evidence early. Text messages, emails, and the sequence of events often tell a more persuasive story than testimony alone.

Credibility is King. Anne was cross-examined on ambiguous documents, including texts and a birthday card that could have supported the other side's position. She explained each one consistently and without retreating. Rose, by contrast, offered tepid non-denials. The contrast was fatal to Rose's position. Practitioners preparing clients for cross-examination in trust disputes should anticipate that ambiguous documents will be put to them. The witness should be prepared to explain each one.

Pecore and the elderly transferor. The Pecore framework exists in large part because of the reality Justice Rothstein identified: elderly parents routinely transfer property to adult children for administrative convenience, not as gifts. Justice Bodurtha's application of that framework here is entirely orthodox, but it is a useful reminder. In Lunenburg County, and across rural Nova Scotia, informal family transfers are common. The presumption of resulting trust is the default. Practitioners should advise clients on both sides of these transactions accordingly.

IV. Conclusion

Cunningham is a well-reasoned decision on familiar facts. The court applied Pecore with precision, assessed the evidence with care, and reached a sensible result. But this court application should not have been necessary. A written trust agreement, a declaration of trust, or even a carefully worded letter could have resolved the matter before it began.

The lesson for practitioners is plain: when a client's estate plan depends on a family member doing the right thing, put the plan in writing. Trust is not a legal instrument. A declaration of trust is.

The Next Generation of AI Hallucinations: A Case Comment on Kapahi Real Estate Inc. v. Elite Real Estate Club of Toronto Inc., 2026 ONSC 1438

Overview

In Kapahi Real Estate Inc. v. Elite Real Estate Club of Toronto Inc., Justice Myers of the Ontario Superior Court confronted what he described as a possible "next generation of AI hallucinations." Unlike earlier cases in which counsel cited entirely fictitious authorities, the factum in question cited real cases with correct neutral citations to CanLII. The quotations attributed to those cases, however, were fabricated. Nothing like them appeared in the decisions from which they were said to be drawn. There were seven such quotations.

The decision raises pointed questions about the adequacy of counsel's explanation for the errors, the limits of judicial investigation in such circumstances, and the appropriate institutional response when the court cannot determine whether it is dealing with undisclosed AI use or deliberate falsification.

A note before diving in: practising in Nova Scotia, I have not encountered opposing counsel misusing AI in court filings. I have, however, on at least two occasions encountered self-represented litigants using — and misusing — AI to prepare not only briefs but also originating notices, pleadings, and affidavit evidence. One such litigant admitted under cross-examination to using ChatGPT, CoPilot, and Gemini — yes, all three — to prepare his court documents. The phenomenon is no longer hypothetical or confined to other jurisdictions. It is here, and practitioners and judges in every province need to be alive to it.

I. The Facts

The underlying proceeding was unremarkable. Justice Steele had enforced an arbitral award against the respondents and awarded costs. The respondents moved to vary the order. Justice Myers dismissed the motion, finding it wholly without merit, and noted that the respondents' counsel, Mr. Parvaiz, had made baseless allegations of sharp practice against opposing counsel.

The applicants then delivered costs submissions identifying what they said were AI hallucinations in Mr. Parvaiz's Reply Factum. Justice Myers confirmed the concern: the Reply Factum contained quotations that did not originate from the cases to which they were attributed. The court put two questions to Mr. Parvaiz directly — whether he had used generative AI to draft the factum, and why the certification of authenticity required by Ontario’s Rule 4.06.1(2.1) was absent.

The matter settled before costs submissions were completed. The respondents agreed to pay costs on a substantial indemnity basis, fixed at $32,747.40. The applicants abandoned their motion for costs against Mr. Parvaiz personally. But Justice Myers was not content to let the matter rest there.

II. The Seven Fabricated Quotations

Justice Myers reproduced the seven impugned passages from Mr. Parvaiz's Reply Factum. In each instance, the factum cited a real case with a correct neutral citation. The quotations were presented as direct extracts — indented, placed in quotation marks, and attributed to specific judges. But none of the quoted language appeared in the cited decisions. As Myers J. put it with characteristic directness after each: "Nothing like this quotation appears in the case. It is wholly made up."

The pattern was consistent. The citations were real. The judges' names were sometimes wrong — one passage attributed to "Justice Mosley" was from a decision written by Perell J. The quotations themselves were plausible-sounding propositions of law on topics like the standard of review for arbitral awards and piercing the corporate veil. They read, in other words, exactly like AI-generated legal text: substantively reasonable, stylistically generic, and entirely untethered from any actual judicial decision.

A telling forensic detail: none of the neutral citations included pinpoint paragraph references. The absence of pinpoints across all seven quotations is consistent with AI-generated output, which typically produces case names and neutral citations but fails to direct the reader to a passage that actually exists.

III. Mr. Parvaiz's Explanation

Mr. Parvaiz wrote to the court acknowledging that five paragraphs of his Reply Factum were "not accurate" — though the actual count was seven. He attributed the errors to "a lack of due care," "human errors," "misreading of the cases cited," "carelessness," and "inadvertence." He denied having used artificial intelligence or any similar tool. He expressed remorse, noted he was a sole practitioner called to the bar only in 2022, and took full responsibility.

IV. The Court’s Analysis

Justice Myers did not accept the explanation — nor did he formally reject it. He could not, because he had not had the benefit of full submissions or cross-examination. But he made his scepticism plain.

The core difficulty with Mr. Parvaiz's account, as Myers J. identified it, is this: if he did not use AI, how did he fabricate seven quotations and present them as direct extracts from real cases? One might charitably explain a single garbled quotation as a transposition error or a faulty paraphrase that accidentally acquired quotation marks. But seven distinct fabrications, each formatted as a direct quotation from an identified authority, cannot be the product of "misreading" or "carelessness." As the court observed, it is difficult to conceive of how anyone could "make up a quotation that supports the argument in a factum by misreading a case or being careless."

Myers J. framed the dilemma starkly: either Mr. Parvaiz used AI and was untruthful about it, or he did not use AI and instead personally fabricated seven quotations and attributed them to real cases. Neither explanation reflects well on counsel. And if the denial was untruthful, the court noted, the cover-up may be worse than the initial error.

V. The Court’s Response

Justice Myers considered but declined to initiate contempt of court proceedings, citing the absence of full submissions, the practical limitations of a judicial investigation into questions of computer metadata and online history, and the fact that Mr. Parvaiz had already been exposed to costs consequences. The court also referenced its earlier experience with AI hallucinations in the matter of Ko v. Li, where a show cause order ultimately led to a referral to the Attorney General for prosecution — but only after counsel had admitted to being untruthful at a prior hearing.

Instead, Myers J. referred the matter to the Law Society of Ontario for investigation, noting that the Law Society and the Toronto Police Service are better equipped to determine whether the fabrications resulted from undisclosed AI use or deliberate falsification.

VI. Implications for Practitioners

Kapahi is significant for at least three reasons.

First, it illustrates the evolution of AI hallucination in legal practice. The early cases involved fabricated case names and invented citations — errors that were relatively easy to detect. Kapahi represents a more sophisticated failure: real cases, correct citations, fake quotations. This pattern is harder to catch on a cursory review and places a correspondingly greater burden on counsel to verify not just that a cited case exists, but that the quoted passage actually appears in it. Any lawyer using AI for legal research — and many are, whether they admit it or not — must read the cases themselves.

Second, the decision underscores the significance of Ontario’s Rule 4.06.1(2.1) certification, which requires counsel to certify that the factum does not contain AI-generated content that has not been verified for accuracy. Mr. Parvaiz's Reply Factum did not include this certification. The omission is not merely a procedural technicality; it exists precisely to guard against the kind of problem that materialized here. It will be interesting to see how other provinces, including Nova Scotia, respond to these same concerns.

Third, Kapahi exposes the limits of judicial self-help in addressing AI misuse. A judge can identify the problem, flag it, ask questions, and make referrals. But a judge cannot compel production of browser histories, examine computer metadata, or cross-examine counsel on the process by which a factum was prepared — at least not without converting the proceeding into something resembling a prosecution. Myers J. was candid about these limitations, and his decision to refer the matter to the Law Society reflects a pragmatic recognition that some questions are better answered by bodies with investigative authority.

VII. Conclusion

This is a cautionary decision. It demonstrates that the AI hallucination problem in legal practice is not receding — it is evolving. The fabrications are becoming more subtle, and the explanations less convincing, while the institutional tools for addressing them remain imperfect.

For practitioners, the lesson is straightforward: if you use AI in any aspect of legal research or drafting, you must verify every citation and read every case you cite. The certification requirements now appearing in rules of civil procedure across the country are not bureaucratic formalities — they are the profession's first line of defence against precisely this kind of failure. And if you do not use AI, your factum should not contain seven fabricated quotations!

When Wills Go Missing: A Case Comment on Re Beals Estate, 2026 NSSC 73

Overview

In Re Beals Estate, Justice Gabriel of the Nova Scotia Supreme Court confronted a recurring and practically significant problem in estate law: what happens when a properly executed will cannot be found after the testator's death? This case comment examines the court's application of the presumption of revocation, its assessment of the strength of that presumption on the particular facts, and its ultimate conclusion that the presumption was rebutted. The decision offers useful guidance on the evidentiary framework applicable to missing wills in Nova Scotia, the interaction between the presumption and section 45 of the Evidence Act, and the role of credibility in estate proceedings. It also raises broader questions about the vulnerability of testamentary documents and practical steps practitioners can take to protect their clients' intentions.

I.  Introduction

The disappearance of a will after a testator's death is among the more disruptive events that can befall an estate. It triggers a presumption of revocation — the inference that the testator destroyed the document with the intention of revoking it — and potentially unravels carefully considered testamentary plans in favour of an intestacy that the deceased may never have contemplated.

Re Beals Estate (“Beals”), decided by Justice Gabriel in March 2026, provides a timely and instructive treatment of this problem. The deceased, Laura Victoria Beals, had executed a valid will in 2018 under the auspices of the Preston Wills Project — a community initiative in which Halifax-area lawyers and Dalhousie law students assisted qualifying individuals in preparing testamentary documents. That will left Laura's home to her grandson Lindsay, with whom she had lived for the better part of a decade. Following her death in July 2023, the original will could not be located. Lindsay, supported by his mother Leanne, applied for proof in solemn form of photographs of the executed will and an unexecuted copy retrieved from the drafting lawyer's file. One of Laura's daughters, Rolenda, opposed the application and contended that the presumption of revocation applied and had not been rebutted.[1]

Justice Gabriel granted the application. His reasons traverse the law of execution, the presumption of revocation, the admissibility of affidavit evidence, and the assessment of credibility in estate proceedings.

II.  Background and Facts

Laura Victoria Beals died on July 6, 2023, leaving a modest estate consisting of her home in East Preston, Nova Scotia, a joint bank account, and household furnishings. She was survived by seven children. Her will, executed on April 26, 2018, named her grandson Lindsay as executor and sole beneficiary of the home and residue. Her children were expressly disinherited, the will noting that they were self-sustaining adults with their own families who were aware of her intentions.

The context for this disposition was significant. Lindsay had moved into the home with his grandmother in 2013 following the death of her husband, and lived there continuously until her death — assisting with cooking, cleaning, household repairs, outdoor maintenance, and general care. He had a disability and lived on a fixed income. His grandmother's will, in short, reflected a rational and considered response to their mutual circumstances.

The will was stored in a brown envelope in the drawer of Laura's bedside dresser. It was seen and photographed there by Lindsay's mother Leanne in November 2021, following Laura's first stroke. It was seen again by Laura's son Roland in June 2023, shortly before her return home from hospital following a second and fatal stroke. After Laura died, however, the will could not be found.

The proceeding was complicated by the conduct of two of Laura's daughters. Crystal, who had been joint on her mother's bank account, withdrew approximately $25,000 in cash in the weeks following Laura's death, producing no receipts and offering an explanation the court found incredible. She was also reported to have said, at a family gathering, that she had "burned up" the will. Rolenda, for her part, moved into the home shortly after Laura's death and contested the will's existence in a manner the court found evasive and self-serving.

III.  Execution, the Presumption of Revocation, and Its Rebuttal

A.  Proper Execution

Section 6 of the Wills Act requires that a will be signed by the testator at its foot, with the signature made or acknowledged in the presence of two witnesses present at the same time, who then attest and subscribe.[2] On the facts of Beals, there was no dispute that these formalities had been observed. The drafting lawyer and project coordinator both confirmed that their initials appeared on the photographed document. The Respondent wisely did not contest execution. Instead, her case rested entirely on the presumption of revocation.

B.  The Presumption of Revocation

Justice Gabriel's summary of the presumption is a useful reference point for practitioners. The presumption of destruction animo revocandi arises when a will is last traced to the testator's possession but cannot be found after death. Its rationale is straightforward: if the testator had the will and it cannot be found, the most natural inference is that the testator destroyed it with the intention of revoking it. The fullest practicable inquiries must be shown to have been made before the presumption can be applied. Once it arises, it may be rebutted by circumstances or declarations indicating that the testator regarded the will as still operative.

A critical and often underappreciated point in the doctrine is that the strength of the presumption varies with the circumstances. Justice Gabriel noted that where the will was kept in an accessible location known to multiple family members, in a household where others had ready access, the presumption does not arise with full force. This variable strength is doctrinally important: it means that the evidentiary burden on the proponent is not fixed but responds to the context.

On the facts of Beals, several features weakened the presumption considerably. The will was kept in an unlocked drawer to which multiple family members had access, including Crystal and Roland, both of whom had keys to the bedroom during Laura's final hospitalization. Laura's incapacitation following her second stroke meant she was physically unable to have destroyed or removed the document after its last confirmed sighting. And the relational context — a devoted grandson, an expressly reasoned disinheritance, a stable testamentary intention expressed repeatedly over years — made voluntary revocation implausible.

C.  Rebutting the Presumption

The factors relevant to rebuttal were conveniently summarized by the court with reference to Haider v Kalugin.[3] They include the reasonableness of the will's terms, the continued quality of the testator's relationship with beneficiaries, whether personal effects were destroyed before the search, the testator's general habits with important documents, statements confirming the will's continued existence, and evidence that the testator understood the consequences of intestacy.

Justice Gabriel found the presumption rebutted on several independent grounds. The terms of the will were eminently reasonable given the circumstances. The relationship between Laura and Lindsay, though not without occasional friction, was close and loving throughout her lifetime. Multiple independent witnesses — including Laura's own sisters, who had nothing to gain from the outcome — confirmed that Laura had consistently and openly stated her intention that Lindsay would receive the home. The will was seen in place as recently as June 2023. And most significantly, Laura's physical condition after her return from hospital rendered it physically impossible for her to have destroyed the document herself.

IV.  The Evidence: Affidavits, Hearsay, and Section 45

A distinctive and practically valuable dimension of Beals is its extended treatment of affidavit admissibility in estate proceedings. The parties filed a large volume of affidavit evidence, and each side raised numerous objections to the other's materials. The two appendices to the decision — cataloguing the court's rulings on each impugned paragraph — constitute a useful reference for estate practitioners navigating similar proceedings.

A.  The Waverley Principles and Rice v Rice

Justice Gabriel applied the well-established Waverley principles governing affidavit content in Nova Scotia proceedings, confirming that affidavits must be confined to admissible facts based on personal knowledge, that hearsay statements must identify their source and attest to the deponent's belief, and that speculative, argumentative, or opinion content has no place in affidavit evidence. He also cited the recent Court of Appeal decision in Rice v Rice as confirming that these principles remain current law and carry real cost consequences for non-compliance.[4]

B.  Hearsay and the State of Mind Exception

A recurring analytical distinction in the admissibility rulings is the difference between hearsay tendered for the truth of its contents, and out-of-court statements tendered to show the declarant's state of mind. Several of the statements attributed to Laura — expressing frustration with Lindsay, or upset that her belongings had been disturbed — were admitted not for the truth of what she asserted, but as evidence of her emotional state and the circumstances surrounding the will's location.

By contrast, statements attributed to Laura that were tendered for their truth — such as assertions that she intended to put Lindsay out of the house — were subject to careful analysis. Where those statements lacked material corroboration and no applicable hearsay exception was identified, they were excluded. This distinction has significant practical consequences: practitioners drafting affidavits should clearly identify whether a statement is offered for its truth or merely to show a declarant's state of mind, and frame the averment accordingly.

C.  Section 45 of the Evidence Act

Section 45 of the Nova Scotia Evidence Act imposes an important corroboration requirement in proceedings involving the estates of deceased persons. An interested party cannot obtain a favourable judgment on the basis of their own testimony — or that of their spouse — regarding dealings, transactions, or statements of the deceased, unless that testimony is corroborated by other material evidence.[5]

In Beals, the corroboration requirement was satisfied across multiple dimensions. The hearsay statements attributed to Laura regarding her intention to leave the home to Lindsay were corroborated by the terms of the will itself, by the independent evidence of Laura's sisters (who stood to gain nothing), and by the consistent testimony of multiple witnesses over an extended period. This multi-source corroboration made the admissibility analysis relatively straightforward on the applicant's side, and it underscores a practical point: cases built on a single interested witness's account of a deceased's statements will be far less compelling than those supported by independent corroboration.

D.  Admissions

Crystal's reported statement that she had "burned up" the will presented an interesting admissibility question. The court admitted evidence of this statement, reported by both Lindsay and Roland, both of whom were available for cross-examination. Notably, however, Justice Gabriel declined to make a definitive factual finding as to whether Crystal had actually destroyed the will, observing that such a finding was unnecessary to resolve the application. This restrained approach is methodologically sound: the question was not what happened to the will, but whether the presumption of revocation had been rebutted. On that question, the evidence of physical impossibility and consistent testamentary intention was sufficient without needing to identify the responsible party.

V.  Credibility in Estate Proceedings

Estate proceedings frequently present the court with competing factual accounts of events, relationships, and statements by a person who is no longer available to offer their own evidence. Credibility assessment accordingly plays an outsized role, and Beals is a useful illustration of how courts approach it.

Justice Gabriel's credibility findings were strikingly negative toward the respondent's witnesses. He found Crystal's explanation of the bank account withdrawals incredible, noting that withdrawing $25,000 in cash in three tranches over eight days — without producing a single receipt — was not a credible account of legitimate funeral and household expenses. He drew an adverse inference from Crystal's apparent reluctance to produce the bank records and from the combination of unexplained withdrawals with post-death travel and vehicle purchases.

Rolenda fared no better. The court found her evidence evasive on the question of whether she knew of the will's existence, and noted the implausibility of her account of moving into the home. The near-identical drafting of key paragraphs between Rolenda's and Crystal's reply affidavits — a feature that does not escape judicial notice — further undermined their credibility.

The contrast with the applicant's witnesses was sharp. Laura's sisters were disinterested — they stood to gain nothing from the outcome — and their evidence was consistent, detailed, and credible. The independent corroboration they provided was central to the outcome. Practitioners assembling evidence in contested estate matters should be alert to the value of disinterested witnesses whose credibility cannot be impugned on the basis of financial interest.

VI.  Implications for Practitioners

Beals provides several important takeaways for estate law practitioners.

First, document storage advice matters. The vulnerability of Laura's will was foreseeable. It was kept in an unlocked drawer in a household where multiple family members had access, and where a deteriorating family dynamic made interference a real risk. Practitioners should advise clients to store original wills with their solicitor or in a safe deposit box, and to ensure that at least one trusted person knows of the will's existence and location — without providing access to it.

Second, the Preston Wills Project model deserves recognition. The fact that an unexecuted copy of the will was recoverable from the Project’s records proved critical. The availability of that document, together with Leanne's 2021 photographs, gave the applicant the evidentiary foundation needed for proof in solemn form. Community will-drafting initiatives that maintain proper records perform a valuable function that extends well beyond the drafting moment.

Third, affidavit drafting in estate applications requires discipline. The appendices in Beals demonstrate this, as numerous paragraphs were struck from both sides' materials. The Waverley principles and the requirements of Civil Procedure Rule 39 impose real constraints, and the Court of Appeal's recent endorsement of meaningful cost consequences in Rice v Rice makes compliance more than an academic concern.

Fourth, the importance of disinterested witnesses cannot be overstated. In Beals, the evidence of Laura's sisters effectively decided the case. Their absence of financial interest gave their evidence a weight that no amount of testimony from interested parties could match. Where a client has a clear testamentary intention that may be challenged, practitioners should encourage the client to express that intention openly and repeatedly to people who have no stake in the outcome.

Fifth, the interaction between the presumption and physical incapacity deserves attention. Justice Gabriel's finding that Laura's post-stroke condition made it physically impossible for her to have destroyed the will is a significant factual anchor. In cases involving elderly or incapacitated testators, evidence of the testator's functional limitations at the relevant time can be a powerful tool in rebutting the presumption — provided it is framed as factual observation rather than opinion, as the court's admissibility rulings in Beals make clear.

VII.  Conclusion

Re Beals Estate is a well-reasoned decision that applies settled doctrine with clarity and care. Its most significant contribution may be its practical demonstration of how the variable strength of the presumption of revocation operates in context — and how a combination of physical impossibility, consistent testamentary intention, disinterested corroboration, and adverse credibility findings can work together to rebut it decisively.

For practitioners, the case is a reminder that the best protection for a client's testamentary intentions lies not just in a properly executed will, but in careful advice about document storage, proactive record-keeping by the drafting firm, and the preservation of a clear testamentary record. The will Laura Beals made in 2018 survived not because it was kept safe, but because enough people knew about it — and enough of them came forward to say so.

Notes

1.  Re Beals Estate, 2026 NSSC 73.

2.  Wills Act, RSNS 1989, c 505, s 6.

3.  Haider v Kalugin, 2008 BCSC 930 at para 13.

4.  Rice v Rice, 2026 NSCA 22 at paras 51–55.

5.  Nova Scotia Evidence Act, RSNS 1989, c 154, s 45.