Key Takeaways from the 29th Estates and Trusts Summit

de VRIES LITIGATION LLP had the pleasure of attending and presenting at the 29th Estates and Trusts Summit on October 20, 2026. The program canvassed a wide range of timely issues for estate litigators. Below is a brief overview of some of the discussions that stood out:

AI and Privilege

Peter Askew, Miller Thomson LLP, led the discussion on AI and Privilege, highlighting a developing issue on which Canadian authority remains limited. The emerging U.S. decisions suggest that privilege depends upon the nature of the search, why it was done, and the AI models privacy policy.

In United States v. Heppner (Heppner), the court held that a criminal defendant’s written exchanges with Claude, a generative AI platform, were not protected by attorney-client privilege or the work-product doctrine. Relevant considerations included that Claude was a third party rather than an attorney; the defendant had used the platform without counsel’s direction; and Anthropic’s privacy policy permitted the use of inputs and outputs for model training and disclosure to third parties, including government authorities.

By contrast, in Warner v. Gilbarco, Inc., (Warner) and Archie Morgan v. V2X (Morgan), two civil proceedings involving self-represented litigants, illustrate a more nuanced approach. The courts there recognized that the use of generative AI does not automatically eliminate work-product protection for materials prepared in anticipation of litigation.
Further, the court in Morgan distinguished Heppner on the basis of legal representation. Unlike the defendant in Heppner, who independently used AI to develop defence strategies despite having retained counsel, the plaintiff in Morgan was self-represented and effectively acted as both client and counsel. The only information the court required the self-represented party to disclose was the AI platform itself, to determine whether the disclosure of V2X’s confidential information to the platform had compromised the confidentiality of that information.

Three practical lessons:

1. Using AI does not itself create privilege;
2. Privilege may be lost before a lawyer ever sees a document; and
3. Not all AI platforms present the same risks. Each platform has its own terms of use, data-retention practices, and model-training policies. It is important to distinguish between publicly available AI platforms and secure, closed-loop systems designed for legal professionals.

For lawyers, these decisions serve as an important reminder to discuss AI use with clients at the outset of a retainer and explain the potential risks of entering confidential or privileged information into publicly available AI platforms.

What You Need to Worry about in your Estates Litigation Practice; The “favour economy” and the Drafting Lawyer

Alex Smith of Henein Hutchison Robitaille LLP examined the risks that arise when lawyers prepare wills as favours for friends of business associates. The Ontario Court of Appeal’s decision in Anroop v. Naqvi, 2026 ONCA 142 illustrates how even an informal arrangement can contribute to suspicious circumstances.

The case turned on several key facts: the drafting lawyer had a financial relationship with the respondent’s husband; there was expert evidence that the testator’s signature had been forged; the will contained unusual provisions; the testator was vulnerable, dependent, and socially isolated; and the will departed substantially from her earlier wills. Together, these facts raised suspicious circumstances, rebutted the presumption of validity, and supported findings that the testator lacked capacity, did not know and approve the will’s contents, and was subject to undue influence.

For litigators, the decision reinforces the importance of examining the drafting lawyer’s relationships and any economic benefit outside the solicitor-client relationship. Discovery should probe referral arrangements, whether there was unpaid work or the existence of business ties, and the circumstances surrounding the retainer. The drafting lawyer’s file will often be central to that inquiry.

Suspicious Circumstances and How the Doctrine Applies to POA Challenges

Shalom Cumbo-Steinmetz of Torys LLP and Joanna Lindenberg of de VRIES LITIGATION LLP discussed the application of suspicious circumstances beyond wills, including challenges to powers of attorney for property and personal care. Suspicious circumstances invite greater scrutiny – they do not automatically invalidate the POA.

Recent case law has identified specific factors that should be analyzed when a power of attorney is executed, providing Ontario courts with a more structured framework for determining when suspicious circumstances may be present in a power of attorney dispute:

1. The extent of the grantor’s physical and mental impairment around execution;
2. Whether the instrument significantly changed an earlier instrument;
3. Whether the instrument made sense in light of the grantor’s interests;
4. The factual circumstances surrounding execution; and
5. Whether the beneficiary was instrumental in preparing the instrument. [1]

Facts persuade; conclusions do not: A key takeaway for practitioners is the importance of documenting facts rather than conclusions. Solicitor’s notes in respect of capacity in particular should capture not only what the client said, but also the reasoning behind their decisions and their understanding of the consequences.

Further, because the parties are still alive when a power of attorney is challenged, the financial considerations differ from those typically arising in a will challenge. Practitioners should explore why the power of attorney is being granted and whether any significant transactions are anticipated.
Another important consideration is the separate operation of Ontario’s Health Care Consent Act. Removing a legally married spouse as attorney for personal care does not necessarily prevent that spouse from acting as a substitute decision-maker under the legislation.

Section 3 Counsel – What We Know Now that We Wish We Knew Then

Alexander Procope of Perez Procope Leinveer LLP and Yasmin Vinograd of Merovitz Potechin LLP offered an in-depth discussion with practical guidance for counsel appointed under section 3 of the Substitute Decisions Act, 1992. Practice tips include the following:

• Prevent interference with the client and ensure access. Section 3 counsel must have private and unrestricted access to the incapable person in order to obtain instructions, maintain confidentiality, avoid conflicts of interest, and accommodate any disabilities. In practice, family members or other interested parties may interfere with counsel’s ability to do so by withholding the client’s contact information or other relevant details. Where such interference occurs, or is anticipated, counsel should seek directions from the court. Appointment orders can also require the prompt disclosure of the client’s address and contact information to counsel. If parties continue to obstruct access to the client or fail to comply with the court’s directions, counsel may then bring a motion for contempt.
• Protect confidentiality. Before sending a reporting letter, consider whether the client can keep it private. Family involvement may compromise confidentiality.
• Fees. Section 3 counsel’s accounts may still be reviewed by the substitute decision-maker, making timely and detailed billing particularly important.

This years Estates and Trusts Summit provided valuable insights, practical guidance, and thoughtful discussions on the evolving challenges facing estate litigators. We thank the organizers and speakers for another informative and engaging event.

[1] Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al., 2021 ONSC 3366.