Overview

The Ontario Superior Court’s decision in In the Estate of Brian William McGarry, 2025 ONSC 3299 is a striking example of how courts handle suspicious wills, contested life insurance beneficiary changes, and the appointment of an Estate Trustee During Litigation (ETDL). Justice Marc Smith was faced with allegations of diminished capacity, potential undue influence, and unusual estate planning decisions that heavily favored the deceased’s former lawyers. The ruling not only clarifies the court’s power to step in before probate begins but also reinforces the principle that fairness and neutrality are central in contested estate matters.

The Facts

Brian William McGarry died in January 2024, leaving behind three children. Although he had separated from his wife in 2014, they were never divorced. Concerns about his mental capacity had been raised as early as 2014, when a neuropsychological assessment suggested signs of Alzheimer’s disease. Shortly after receiving that report, McGarry changed lawyers, retaining Daniel and Georges Nassrallah. The relationship later deteriorated, and the Nassrallahs sued him for over $125,000 in unpaid legal fees. Just three days after admitting their claim in court, McGarry signed a new will in October 2016 naming the Nassrallah brothers as sole executors.

Only days later, he altered a $1 million life insurance policy that had originally named his estate as beneficiary. The change was irrevocable and directed that 45 percent of the policy go to Daniel Nassrallah, 45 percent to Georges Nassrallah, and just 10 percent to his daughter Sheetza. Earlier wills from 2011 and 2012 had named family members, not the Nassrallahs, as beneficiaries. In June 2024, the Nassrallahs renounced their roles as executors. Sheetza McGarry then applied to have an ETDL appointed to investigate both the will and the insurance changes before any attempt at probate.

The Law

The case engaged several key provisions of Ontario’s estate law framework. Rules 75.01 and 75.06 of the Rules of Civil Procedure allow any person with a financial interest in an estate to request that a will be proved in court, provided they can produce evidence raising legitimate concerns about its validity. Section 28 of the Estates Act empowers the court to appoint an administrator, such as an ETDL, to manage an estate while a dispute over the will is pending. The appointment of an ETDL is guided by factors including potential conflicts of interest, hostility between parties, and whether the proposed trustee might be a witness in the litigation.

Justice Smith also referred to the principle that suspicious circumstances surrounding a will—such as sudden changes to benefit non-family members shortly before death—shift the burden to those propounding the will to prove that the testator had capacity and knew and approved of its contents.

Analysis

The Nassrallahs argued that the application should be dismissed for procedural reasons, including the absence of a Notice of Objection and the fact that no one had applied to be estate trustee. Justice Smith rejected this position. The court found the facts to be highly suspicious and concluded that the applicant had met the evidentiary threshold for requiring proof of the will. The renunciation of the Nassrallahs as executors, the applicant’s inability to probate the 2016 will herself due to its contested nature, and the questionable timing of the estate planning changes all justified immediate judicial intervention.

While the applicant was supported by her family, the court decided not to appoint her as ETDL due to the clear hostility between her and the Nassrallahs, both of whom remain interested parties by virtue of the life insurance designation. Instead, Justice Smith appointed Ian Warren and Dahlia Aeta of Warren Camacho LLP as neutral ETDLs to oversee the estate while the litigation proceeds. This decision was rooted in the need to preserve impartiality and public confidence in the process, even if it meant incurring additional costs in what might be an insolvent estate.

The court also approved most of the applicant’s proposed Order for Directions but allowed the Nassrallahs 30 days to negotiate terms for producing their legal files. If no agreement is reached, the matter can return to Justice Smith for resolution.

Lessons Learned

This case underscores how Ontario courts approach estate disputes where there are serious concerns about the circumstances under which a will and related beneficiary designations were made. It illustrates that the court’s supervisory role is not limited to the probate stage; it can intervene early to ensure that the estate is administered fairly and transparently. The appointment of a neutral ETDL is a powerful tool for maintaining trust in the process, especially when the proposed estate trustee has an adversarial relationship with other interested parties.

It also demonstrates the importance of contemporaneous medical evidence when questions of capacity arise. Where there is credible evidence of cognitive decline, even years before a will is signed, the court will be alert to the risk of undue influence or lack of capacity. Finally, the decision confirms that disputes over life insurance beneficiary changes can be considered alongside will challenges when both appear to stem from the same suspicious circumstances.

In short, In the Estate of Brian William McGarry is a reminder that in Ontario estate litigation, the court will look beyond formalities and into the broader context to protect the integrity of the testamentary process.

Whether you are facing a will challenge, disputing life insurance beneficiary changes, or seeking the appointment of an Estate Trustee During Litigation in Ontario, the case of In the Estate of Brian William McGarry shows that the courts will act swiftly where suspicious wills and potential undue influence are alleged. These matters require careful navigation of the Rules of Civil Procedure, the Estates Act, and the complex evidentiary burdens that come with contesting a will or defending one.

If you need guidance on Ontario estate disputes, executor conflicts, or estate trustee appointments, contact Bobila Walker Law. Our team has the experience and dedication to protect your interests and guide you through even the most challenging estate litigation.