Saskatchewan Appeal Court Affirms Counsel Removal in Estate Case

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. The testator’s husband sued the daughter. He asserted that: 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. 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: 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. 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: 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. 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. 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 th