Flaherty McCarthy LLP is pleased to recognize a successful result obtained by Jean-Claude (J.-C.) Rioux on behalf of the respondent, Judith Rogers, in Liscombe v. Groskopf et al., 2026 ONSC 3646.
The decision, released by Justice A.D. Hilliard of the Ontario Superior Court of Justice on June 22, 2026, dismissed an application that sought to validate a collection of documents as the deceased’s Last Will and Testament and, in the alternative, to have the estate administered as an intestacy. The Respondents opposed the application and were entirely successful.
Background
The proceeding concerned the estate of Carol Donna Liscombe. In an earlier application, the Court had validated an undated handwritten document as Carol’s Last Will and Testament under section 21.1 of the Succession Law Reform Act. That earlier decision confirmed the document as Carol’s Will.
The applicant later discovered a separate collection of documents dated October 18, 2005 and asked the Court to validate those documents as Carol’s Last Will and Testament. He also sought an order confirming that the 2005 documents revoked the previously validated Will. In the alternative, he argued that the newly discovered documents called the validity of the earlier Will into question and that the estate should instead be administered as an intestacy.
Only two respondents filed responding materials. Both opposed the application and asked that it be dismissed in its entirety. Jean-Claude Rioux represented Judith Rogers, one of the successful respondents.
Court’s Analysis
The Court reviewed the developing case law under section 21.1 of the Succession Law Reform Act. The Court confirmed that, where a party seeks to validate a document as a will despite non-compliance with the usual execution formalities, the Court must be satisfied that the document is authentic and that it sets out the deceased’s testamentary intentions.
In this case, authenticity was not the main issue. The central question was whether the documents demonstrated Carol’s fixed and final intention to dispose of her property after death.
The Court found that they did not.
The documents were incomplete. They included missing pages, no designation of an executor, and no clear disposition of the residue of the estate. Some of the self-counsel will kit materials were initialled but not dated, while the signature page was signed but undated. The Court also found it significant that some of the documents referred to a “copy of will” and an “original will,” suggesting that the materials were not themselves a new will, but rather part of a memorandum or related estate planning materials prepared in connection with the Will that had already been validated.
The Court also considered the fact that the documents were found among Carol’s business records, rather than in the lockbox where the previously validated Will had been discovered.
Importantly, the Court found that the 2005 documents were largely consistent with the previously validated Will. The Court concluded that Carol had specific wishes about how her estate was to be administered and that the applicant’s request for an intestacy order was inconsistent with the documents already found to represent her testamentary intentions.
Application Dismissed with Costs
The application was dismissed in its entirety.
The Court also held that this was not a case where costs should be paid by the estate. Rather, the usual costs rules in civil litigation applied. The Court found it was plain and obvious that the documents relied upon by the applicant could not support a finding that, even collectively, they constituted a valid will. The Court also found that the documents did not create ambiguity attributable to the testator.
Judith Rogers was awarded costs of $1,000, payable by the applicant. The respondent Annette Groskopf was awarded costs of $12,000, inclusive of HST and disbursements, also payable by the applicant.
Why This Decision Matters
This decision is a useful reminder that section 21.1 of the Succession Law Reform Act does not allow every informal estate planning document to be treated as a will. The Court must still be satisfied, on a balance of probabilities, that the document reflects the deceased’s fixed and final testamentary intentions.
Estate litigation often involves emotionally difficult family disputes, incomplete records, handwritten notes, informal documents, and competing interpretations of a deceased person’s intentions. Careful legal analysis is required to distinguish between a true testamentary document, a draft, a memorandum, or other estate-related materials that may not meet the legal test for a will.
The result in Liscombe also reinforces that unsuccessful estate litigation may have costs consequences personally payable by the party advancing the claim, rather than being paid from the estate.
Flaherty McCarthy’s Estate Litigation Practice
Flaherty McCarthy LLP congratulates Jean-Claude Rioux on this successful result for Judith Rogers.
Our firm represents clients in estate litigation, including will challenges, applications involving testamentary documents, estate administration disputes, trustee disputes, and related civil proceedings. We bring a practical, strategic, and litigation-focused approach to helping clients protect their interests in complex and often sensitive estate matters.
If you are involved in an estate dispute or require advice about contested estate litigation, please contact Flaherty McCarthy LLP to discuss how we can assist.
