Dangers of Inadequate Estate Planning in Ontario
- Red Booth Law
- Mar 4
- 5 min read
Dangers of Inadequate Estate Planning in Ontario: Ways to Avoid Will Challenges
When it comes to estate planning and your testamentary instruments, such as your Last Will and Testament and Powers of Attorney, the importance of seeking competent legal advice from our estate lawyer in Scarborough and avoiding unnecessary will challenges cannot be overstated. A recent Ontario Superior Court of Justice decision, Tibbutt v. Dorrington, 2024 ONSC 522, underscores the dangers of inadequate estate planning and the risks of neglecting proper legal guidance when drafting an Ontario will or managing an estate. This case serves as a cautionary tale for families and individuals who may underestimate the complexities of estate law in Ontario, particularly in matters of testamentary capacity, undue influence, and the proper execution of wills. Whether you are drafting a will, navigating probate in Ontario, or contesting an estate, partnering with our competent Scarborough lawyer ensures your rights are protected and your intentions are legally sound.
Quick Summary of Tibbutt v. Dorrington:
Evelyn Tibbutt, a 99-year-old woman, passed away in December of 2022, leaving behind a modest estate primarily consisting of her real estate property, which sold for ONE HUNDRED FIFTEEN THOUSAND CANADIAN DOLLARS ($115,000.00 CAD). Her surviving family members, her daughter Betty Lou Dorrington and her late son's children (the Applicants), became embroiled in a contentious will dispute over the validity of Evelyn's last will and testament. The Applicants alleged that, when Evelyn signed her will in August of 2020, she lacked testamentary capacity and raised concerns about suspicious circumstances surrounding its preparation.
Key issues in the case included:
Testamentary Capacity: Betty Lou had publicly stated on social media in 2019 that her mother had dementia, though Evelyn’s physician never formally diagnosed her with the said. The will was drafted by Betty Lou’s daughter, Janet, using an online template, without involvement from a lawyer.
Undue Influence: After moving in with Betty Lou and casting doubt on whether the will reflected her true intentions, the Applicants argued that Evelyn was isolated from them.
Documentary Evidence: Emphasizing the need to resolve conflicts over Evelyn’s mental state and the will’s validity, the Ontario Superior Court of Justice granted the Applicants’ motion to compel production of medical and legal records.
The court’s decision to allow further discovery highlights how even seemingly straightforward estates can become mired in estate litigation in Ontario when legal formalities are overlooked.
Why This Case Matters to You
Estate disputes are emotionally and financially draining. The Tibbutt case illustrates THREE (3) critical lessons for anyone planning their estate or navigating probate in Ontario:
Testamentary Capacity Must Be Clear and Documented
A testator’s mental capacity is a cornerstone of a valid will. In Tibbutt, including a Facebook post referencing dementia and anecdotal evidence of memory lapses, questions about Evelyn’s cognitive decline created enough doubt to warrant court intervention. Without medical records or a lawyer’s assessment of her capacity, the will’s validity was vulnerable to challenge. As a competent estate lawyer also providing services to our clients in Markham, our will lawyer always ensures proper capacity is assessed and documented.
Suspicious Circumstances Invite Litigation
The court identified multiple 'suspicious circumstances,' as follows:
The will was drafted by a family member using an online template.
Evelyn’s primary asset was her real estate property, which was sold privately below market value, with proceeds deposited into a joint account controlled by Betty Lou.
The Applicants were excluded from funeral arrangements and obituaries, suggesting possible alienation.
These red flags could have been mitigated with transparent, professional oversight. Our probate lawyer in Scarborough ensures wills are executed impartially and in compliance with Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26. At Red Booth Law, to prevent allegations of undue influence or impropriety, we guide our clients through drafting wills, powers of attorney, and trusts.
Proper Documentation Is Non-Negotiable
The absence of legal documentation proved costly in Tibbutt. Evelyn’s will lacked the hallmarks of a professionally drafted legal document, such as witness affidavits or a lawyer’s notes confirming her instructions. This opened the door to claims that the Ontario will did not reflect her true wishes.
With a law offices in Scarborough and Bowmanville, our team ensures all estate documents are meticulously prepared, witnessed, and stored. Our Scarborough estate attorney also advises on asset transfers (e.g., joint accounts) to avoid unintended consequences, such as resulting trust claims.
The Risks of DIY Estate Planning
The Tibbutt case is a textbook example of the pitfalls of DIY estate planning. While online will templates may seem cost-effective, they often fail to address nuanced legal requirements. For example:
Joint Accounts: Evelyn’s real estate proceeds were held jointly with Betty Lou and Janet, but withdrawals totalling TEN THOUSAND CANADIAN DOLLARS ($10,000.00 CAD) were later characterized as 'gifts'. Without clear documentation, such transactions can lead to disputes over ownership.
Powers of Attorney: Evelyn’s POAs were prepared by a lawyer, but the will was not a critical oversight that fueled suspicions of cherry-picked legal involvement.
Engaging with our estate law firm in Scarborough ensures consistency across all estate planning instruments, reducing ambiguity and litigation risks.
Have Our Scarborough Estate Lawyer Protect Your Legacy
At Red Booth Law, our Scarborough law office combines high level of competency with a client-centered approach to estate planning. Here’s how we safeguard your interests:
Comprehensive Capacity Assessments
Our Ontario estate lawyer collaborates with you, the client, to properly assess and document testamentary capacity, creating a robust evidentiary record.
Transparent Will Drafting
With detailed notes confirming your knowledge and approval of the terms, we ensure wills are drafted in accordance with your instructions.
Conflict Mitigation
By involving unbiased and neutral third parties in will executions, we reduce the risk of undue influence claims.
Probate and Trust Administration
As a leading probate Scarborough lawyer, our team navigates the complexities of Ontario probate and estate administration, ensuring assets are distributed efficiently and disputes are resolved preemptively.
Key Takeaways: Why Legal Advice Is Essential
The Tibbutt case underscores several non-negotiable truths for Ontario estate planners:
Capacity Matters: Even mild cognitive decline can invalidate a will. Partner with our attorney to ensure capacity is legally sound.
Professional Drafting Is Critical: Online templates lack the rigor of attorney-drafted documents. Trust our law office in Scarborough to avoid ambiguity.
Transparency Prevents Disputes: Clear documentation and impartial oversight protect your legacy from challenges.
Secure Your Legacy with Red Booth Law
If you are drafting a will, getting appointed as estate trustee, via probate, administering an estate, or facing a dispute, do not leave your legacy to chance. Our Scarborough will lawyer provides the competency and diligence needed to navigate Ontario’s estate laws confidently. As a trusted law firm in Scarborough and the Greater Toronto Area, we prioritize your peace of mind through tailored solutions and proactive legal strategies.
Don’t wait until a family conflict arises. Schedule a consultation with our highly respect and competent estate lawyer today to ensure your wishes are honoured and your loved ones are protected. From drafting to probate, we will guide you through every step with the professionalism and care your legacy deserves.
Red Booth Law
Estate Litigation | Probate | Wills & Trusts
Scarborough | Bowmanville | 416 953 0040 | info@redboothlaw.com
NOTE: It's important to know that laws and regulations are subject to change, and the information provided in the article may not reflect the most up-to-date legal requirements. Before making any decisions or taking any action, it's essential to consult with a legal professional to ensure that you have the most current and accurate information.
The content provided on this website is for informational purposes only and should not be considered as professional legal advice. If you have specific questions or concerns about your situation, it's always best to consult with our estate planning lawyer in Scarborough, Bowmanville and the Greater Toronto Area, who can provide personalized guidance.
