May 16, 2024

By Brian Babcock 

Your will is supposed to express what you want done with your property after you die. After all that is why it is called a “will”- because it expresses your will.

THE ISSUE

But what happens if the formal will for some reason does not accurately express your intentions?

Usually, we think of wills as documents that we try to follow exactly as they are written, to respect the wishes of the deceased. Can we make exceptions when it is necessary to capture those wishes?

THE CASE

In Ihnatowych Estate v. Ihnatowych the Ontario Court of Appeal reminds us that equity can step in where a document contains an error. Equity is the branch of the law which developed historically to relieve from absurd or unfair results which would occur by simply applying common law.

Though the law of wills is now set out in the Succession Law Reform Act, equity still applies to trusts law, including the interpretation of wills.

The remedy of rectification is the tool which equity makes available to fix certain mistakes. Rectification means “putting something right”.

But the principles governing rectification must be closely followed, to avoid every defeated or disappointed potential beneficiary from seeking relief, even when it is not necessary or right to do so.

So, rectification cases are rare.

The Court of Appeal relies on an earlier decision to rule that rectification of a will is available in three situations where there is no ambiguity on the face of the will, and the deceased had read and approved the wording. These situations are:

1. Where there is an accidental slip or omission because of a typographical error or clerical error;
2. Where the testator’s instructions have been misunderstood; or
3. Where the testator’s instructions have not been carried out.

 

In this case, the will used the terms “children” and “grandchildren” in places. In other places, it referred specifically to the testator’s two children born in wedlock. But he also had a son born out of wedlock who claimed a share.

The lawyer that drew the will was unaware of the third child, so did not realize that using the words “children” and “grandchildren” would be a problem. Fortunately, he had good notes of his instructions, and good recollection. His evidence was clear and convincing on the deceased’s true intention, and that a plain reading of the will would not accomplish that intention.

Rectification had been used in the past in a few similar cases at the Superior Court level. The Court of Appeal approved that result in this case.

Rectification will only be used to correct an error in the recording of the testator’s wishes, not where the effect of the will simply produced an unintended consequence in law. A mistaken belief about the legal effect of words is not sufficient.

To obtain rectification, the evidence must have a “high degree of clarity, persuasiveness and cogency”- which makes sense given that we do not want dubious claims for rectification to succeed and want to discourage wasting time and resources on cases that will not succeed.

In addition to the lawyer’s notes and recollection, the testator prior to meeting the lawyer had prepared rough notes of his intention which reflected the same intention to benefit the children of his marriage.

There was no evidence that the third child was to be included in the will.

Rectification was allowed.

TAKEAWAYS

• Rectification is a last resort.
• When you review your will before signing, check to make sure that it clearly reflects your wishes.
• Do not be afraid to ask questions of your lawyer and ask for changes if you are not happy with the draft.
• Standard forms are dangerous and should be used with care.
• Keeping notes of your intention is wise.
• Lawyer prepared wills are more likely to be correct in the first place, but even if rectification must be sought, having the lawyer’s evidence will help ensure that your true wishes are carried out.

 

HOW WEILERS LLP CAN HELP YOU

Our will drafting does use precedents, but in each case, individual care is taken to ensure your true wishes are understood and set out. Wherever possible, we provide a draft for careful review prior to the signing meeting. The signing meeting provides a further opportunity to ask questions and satisfy yourself that the legal effect is what you intend.

Our litigation team has expertise on rectification, and if you are affected by an error in a will, we can advise and represent you.

If you have any questions about rectification, or wills generally, give us a call. We might be the right lawyers for you.