Testator’s husband and daughter disagreed on whether she had capacity to make will
In proceedings in which a deceased woman’s husband and daughter disagreed on whether she was capacitated when she executed her will, the Saskatchewan Court of Appeal confirmed a judge’s disqualification of the husband’s counsel of record.
The case was Anderson & Company v Pare, 2026 SKCA 107. In January 2020, a woman executed a land transfer authorization to place her farmland into joint ownership with her daughter.
In July 2020, the woman’s husband hired Anderson & Company to prepare wills for himself and his wife.
While in palliative care in Calgary, the woman signed her will, witnessed by two lawyers at a Calgary law firm. The woman’s will named her husband as executor of her estate and left to him all her property, including the farmland she held jointly with her daughter.
The woman passed away on Aug. 25, 2020.
Husband’s action against daughter
The testator’s husband sued the daughter. He asserted that:
- He should be the farmland’s sole owner
- In January 2020, the testator lacked the capacity to place the farmland in joint ownership
- In July 2020, the testator regained capacity when executing her will and giving instructions for it
In her defence, the daughter countered that her mother had capacity when she transferred the land, but not when she executed her will. The daughter added that Saskatchewan’s Limitations Act, 2004, barred the husband’s action.
Application to remove counsel
Before the Saskatchewan Court of King’s Bench, the daughter sought to remove Anderson & Company and Jean Jordaan as the husband’s counsel because the law firm or its members might need to give evidence on:
- whether the testator had capacity during the will’s preparation
- whether the parties had a settlement agreement suspending the limitation period
In his opposition, the husband alleged that he was entitled to his chosen legal counsel.
In its opposition, Anderson & Company argued that no conflict would arise if the lawyer who drafted the wills testified because he had since departed from the firm.
Anderson & Company explained that the parties had negotiated the settlement to suspend the limitation period to address any potential negligence claim and to resolve any possible conflict.
To support its position, Anderson & Company tendered a staff member’s affidavit showing emails, many of which had been heavily redacted, between the daughter and the firm on the husband’s behalf.
The daughter denied any settlement agreement.
Disqualification of counsel
On May 14, 2025, a judge of the Court of King’s Bench removed Anderson & Company and Mr. Jordaan as the husband’s counsel. She saw an untenable conflict in the circumstances because Anderson & Company’s representatives would likely need to testify regarding:
- the testator’s capacity
- the existence of a settlement seeking relief against the limitation period
Counsel’s appeal, husband’s cross-appeal
On appeal, Anderson & Company and Mr. Jordaan alleged that the judge should not have disqualified them from acting on the husband’s behalf.
The husband cross-appealed on the same basis. The daughter argued that he lacked standing to cross-appeal.
Saskatchewan Court of Appeal denies appeal
The Court of Appeal for Saskatchewan dismissed the appeal. The appeal court recognized that the husband had standing to cross-appeal as a party to the litigation.
The appeal court ordered Anderson & Company to pay the daughter a set of costs, calculated in the usual manner.
Removal of counsel upheld
The Saskatchewan Court of Appeal acknowledged that the judge did not explicitly state or apply the legal criteria for exercising her discretion to remove law firms or lawyers as counsel of record.
However, the appeal court ruled that the outcome would have been the same even if the judge had applied the correct test in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON CTGDDC).
Upon applying the test, the appeal court held that one factor weighed against disqualification, some factors were neutral, and the most crucial factors favoured removal.
The appeal court found no reason to intervene and no error impacting the result upon applying the correctness standard.
In the circumstances, the appeal court said the judge correctly decided to disqualify Anderson & Company and Mr. Jordaan from representing the husband in his claim, given the significant possibility that they would need to give evidence.
According to the appeal court, a fair-minded and reasonably informed member of the public would agree that the proper administration of justice required the disqualification.
The appeal court explained that Anderson & Company’s lawyers or staff likely had relevant, admissible, and material evidence on core issues in the proceedings.
Previous estate law cases by appeal courts
Here are some other recent trusts and estates law decisions by Canada’s appellate courts.
In an estate proceeding, the Quebec Court of Appeal issued an Aug. 25 decision dismissing the appeal of a man found to have devised a strategy to transfer money flowing from the estate assets to his accounts.
While agreeing with an executrix that a beneficiary’s request to remove her triggered a will’s no-contest clause, the Newfoundland and Labrador Court of Appeal made an Aug. 20 ruling remitting the matter for an application of the frivolous and vexatious test for disinheritance.
Despite three siblings’ agreement to the grant of an appeal, the Saskatchewan Court of Appeal issued a July 29 decision denying the appeal and confirming the correctness of an order for a trial to prove their mother’s will in solemn form.
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