Saskatchewan CA: Anderson & Company v Pare Counsel Removal Upheld

• The Saskatchewan Court of Appeal upheld the removal of Anderson & Company and Jean Jordaan as counsel for a husband in an estate dispute.
• The removal stemmed from the likelihood that the law firm's representatives would need to testify regarding the deceased woman's capacity when giving will instructions and during its execution.
• The King's Bench judge initially removed counsel due to an 'untenable conflict,' a decision affirmed by the appellate court.
• The Court of Appeal found that crucial factors favored disqualification, despite the lower court not explicitly applying the full legal test.
• Anderson & Company was ordered to pay costs to the daughter, reinforcing the 'lawyer as witness' rule in Saskatchewan estate litigation.

Given the significant possibility that Anderson & Company and Mr. Jordaan would need to provide evidence, the appeal court affirmed that the judge correctly decided to disqualify them from representing the husband in his claim.

A recent decision from the Saskatchewan Court of Appeal, Anderson & Company v Pare, 2026 SKCA 107, has affirmed the removal of legal counsel in a contentious estate dispute. The case originated from a disagreement between a deceased woman's husband and her daughter regarding the testator's mental capacity at critical junctures. In January 2020, the woman had authorized a land transfer, placing her farmland into joint ownership with her daughter. Several months later, in July 2020, her husband engaged Anderson & Company to draft wills for both himself and his wife.

While receiving palliative care in Calgary, the woman signed her will, with two lawyers from a Calgary firm acting as witnesses. This will designated her husband as the executor of her estate and bequeathed all her property, including the farmland she now jointly held with her daughter, to him. Following her passing on August 25, 2020, the husband initiated legal action against the daughter. He contended that his wife had been unduly influenced regarding the land transfer and lacked the capacity to execute it. In response, the daughter asserted that her mother possessed capacity for the land transfer but not for signing her will, further arguing that the husband's claim was time-barred under Saskatchewan's Limitations Act, 2004.

Before the Saskatchewan Court of King's Bench, the daughter moved to have Anderson & Company and Jean Jordaan, the husband's legal representatives, removed from the case. Her application was based on the premise that members of the law firm might be required to provide evidence concerning the testator's capacity when she provided instructions for her will and the specific circumstances surrounding its execution. The husband opposed this motion, asserting his right to choose his legal counsel.

Anderson & Company countered that no conflict would arise if the lawyer who drafted the wills testified, as he had since left the firm. They also claimed that the parties had negotiated a settlement to suspend the limitation period and address any potential negligence claims or conflicts. To support this, the firm submitted an affidavit from a staff member, including emails between the daughter and the firm, though many were heavily redacted. The daughter, however, denied the existence of any such settlement agreement. On May 14, 2025, the King's Bench judge ruled in favor of the daughter, removing Anderson & Company and Mr. Jordaan due to an 'untenable conflict,' citing the high likelihood that the firm's representatives would need to testify on the testator's capacity and the will's execution.

Anderson & Company and Mr. Jordaan subsequently appealed the King's Bench decision, with the husband also filing a cross-appeal on the same grounds. The daughter challenged the husband's standing to cross-appeal. The Saskatchewan Court of Appeal ultimately dismissed the appeal, though it acknowledged the husband's standing as a party to the litigation. The appellate court noted that while the King's Bench judge did not explicitly articulate or apply the established legal criteria for exercising discretion in removing counsel, the outcome would have remained unchanged even if the correct test, as outlined in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON CTGDDC), had been applied.

Upon applying this test, the Court of Appeal determined that while one factor weighed against disqualification and some were neutral, the most crucial factors strongly favored the removal of counsel. The court found no reason to intervene with the lower court's decision, concluding that no error impacted the result when applying the correctness standard. Given the significant possibility that Anderson & Company and Mr. Jordaan would need to provide evidence, the appeal court affirmed that the judge correctly decided to disqualify them from representing the husband in his claim. A fair-minded and reasonably informed member of the public, the court added, would concur with this decision. As a result, Anderson & Company was ordered to pay a set of costs to the daughter, calculated in the usual manner.

This ruling in Anderson & Company v Pare serves as a significant reinforcement of the 'lawyer as witness' rule within estate litigation in Saskatchewan. The decision underscores the principle that a law firm or its individual members cannot continue to act as counsel if there is a substantial likelihood they will be called upon to provide material evidence in the proceedings. Such a scenario creates an inherent conflict of interest, as counsel cannot effectively advocate for their client while simultaneously serving as a witness to key facts.

The Saskatchewan Court of Appeal's affirmation of the counsel removal highlights the critical importance of early and thorough conflict-of-interest assessments, particularly in cases involving will drafting or initial client consultations where the lawyer's personal involvement in the factual matrix of the case could become relevant. This outcome emphasizes that the potential for a lawyer to become a witness, especially concerning a testator's capacity, can lead to mandatory counsel disqualification, ensuring the integrity of the judicial process and public confidence in the administration of justice.

Lawyers and compliance officers in estate litigation must be acutely aware of the 'lawyer as witness' rule, as this decision reinforces the high likelihood of counsel disqualification when a firm or its members may need to provide evidence. This necessitates rigorous conflict-of-interest checks and careful consideration of a lawyer's personal involvement in the facts of a case, particularly during will drafting or initial client consultations, to avoid being removed as counsel later in proceedings.

Source: Reporting based on recent court findings.