November 10, 2026
Ontario courts will rectify a will by making a correction where the wording as it is set out in the document clearly does not accurately reflect the deceased person’s intention.
In a prior article, we discussed an Ontario Court of Appeal case, Ihnatowych Estate that considered the limitations of this power and gave guidance to lawyers and judges.
THE ISSUE
How far does rectification go?
When it does not apply, what other paths exist to achieve your true intentions?
A couple of years have passed since the Ihnatowych Estate decision, and Superior Courts, the front-line courts that deal with estate matters, have applied the case to new fact situations.
One of the issues that is unclear is when a court may rectify a will by adding or deleting words, versus simply interpreting the words that are there to reach the desired result.
One of those cases, Kentros v Kentros, involved a will which left a life interest in a property to a named person (the “life tenant”) but failed to say what happened after the life tenant died.
The life tenant was “absolutely” entitled all of the deceased’s property other than those that were the subject of specific gifts.
As a result, should the will be treated as having given the entire interest in the property to the life tenant? This would mean that the life tenant could sell or mortgage the property and keep the money.
Or should the court add a “remainder clause” to the will leaving the property to people other than the life tenant?
Or is there a third path – NOT adding a clause but finding in favour of the grandchildren?
THE CASE
The deceased’s lawyer who drafted the will testified that it was his error that caused the failure to include a remainder clause dealing with the property.
Other properties were left to the deceased’s grandchildren.
Based on that the Superior Court judge ruled that upon the death of the life tenant, the property will pass to the deceased’s grandchildren, rather than the life tenant. This means that the life tenant cannot sell or mortgage the property without their agreement.
The judge chose to rectify the will by adding a new clause favouruiing the grandchildren.
THE COURT OF APPEAL
This created the first opportunity for the Ontario Court of Appeal to apply its decision in Ihnatowych Estate to fresh facts.
In their decision in Kentros, the court upholds result of the Superior Court decision but takes a different path rather tan rectifying the will.
First, they rely on the ‘presumption against intestacy,” which means that if a will is unclear, it should be read so that all property is dealt with in the will, rather than passing outside the will to the deceased’s heirs at law. This includes correcting an omission.
They then accepted the Superior Court judge’s reasoning for deciding that the grandchildren were intended to receive the property.
However, they rule that the judge should not have added wording to the will.
In other words, rectification of the will was not necessary. The normal rules of interpreting a will applied.
The Court of Appeal decided that they could interpret the clause of the will that said that if the life tenant died within 30 days of the decease, the property passed to the grandchildren as applying to ALL situations where the life tenant died before the grandchildren.
A somewhat twisted path to the right result. They chose this path because they were not prepared to resolve confusion in earlier cases about the technical powers of a Superior Court to rectify a will AFTER it is admitted to probate.
In the end, the Court of the Appeal sends a message that the primary goal is to implement the deceased’s wishes where they are known.
TAKEAWAYS
- The Court of Appeal in Kentros spotlights the importance of interpretations of wills that reflect the deceased’s intention.
- How far this goes to prevent technical errors from defeating that intention is not clear.
- We hope that Superior Court judges may be bold enough to follow the message of this case and favour interpretations to achieve the deceased’s intentions in other situations.
- But there is no guarantee of this.
- Does Kentros really just turn on its own facts?
- Might a different result occur where:
- the life tenant disputes the intentions, or
- the lawyer does not admit to the error.
- We need a further Court of Appeal decision to resolve this situation.
- Might a different result occur where:
- Because of this uncertainty, getting your will done right is the best way to make sure your intentions are carried out.
- This means NOT trying to make a “do it yourself” will.
- This means picking the RIGHT lawyers to draft your will.
HOW WEILERS LLP CAN HELP YOU
Our knowledgeable and experienced lawyers take individual care to ensure your true wishes are understood and set out properly in your will. 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 words in your will result in what you intend.
Our litigation team has expertise on rectification and interpretation of wills. If you are affected by a possible 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.