Where a will contains imprecise language, it may be rectified by the court

By Dickson Appell
Where a will contains imprecise language, it may be rectified by the court

Rectification of a Will

In Ihnatowych Estate v. Ihnatowych, the testator left 10% of the residue of his estate to “his grandchildren” and the balance of the residue of his estate to “his issue.” The problem was that he had a son (the appellant) from a relationship prior to his marriage, and his two other children, including the daughter who was the executor, who argued that the testator meant to exclude the appellant from his will and to exclude the appellant’s children from the grandchildren clause.

The daughter/executor brought an application to rectify the Will to name herself and her brother as the deceased’s children, which would act to exclude the appellant and his children from being considered beneficiaries under the Will. It was not disputed that the appellant was the deceased’s biological son.

The parties agreed that the standard for rectifying a will was in accordance with the test laid out in Rondel v. Robinson Estate, 2011 ONCA 493, where the Court stated that rectification is primarily a tool to prevent defeat of the testator’s intention caused by errors or omissions in the will and may be used where the testator’s instructions have not been carried out. There are three circumstances in which a court will rectify a will: (i) in the case of an accidental slip or omission because of the typographical error; (ii) when the testator’s instructions have been misunderstood; and (iii) when the testator’s instructions have not been carried out.

The Evidence:

The drafting lawyer provided an affidavit (on which he was cross-examined) that included handwritten notes from the testator which made specific references to the children of his marriage. He testified that the testator never mentioned the appellant. The will referred to the children of the marriage by name throughout but did not name the appellant. The drafting lawyer also used the word “issue,” which caused the confusion, because the testator had knowledge and contact with the appellant in the years prior to his death.

The application judge agreed that the testator’s intention and instructions were to leave his estate to the children of his marriage only.

On appeal, the appellant argued that the application judge made an “unprecedented application” of the doctrine of rectification; that a new test pursuant to Canada (A.G.) v. Fairmount Hotels Inc. 2016 SCC 56 was not applied; and that the quality of evidence was insufficient to satisfy the Fairmont Hotels test.

The appeal Court rejected the appellant’s arguments. First, the application judge correctly invoked the third factor in Robinson in accordance with precedent. Second, the holding in Fairmont Hotels was consistent with Robinson, and in any event, was distinguishable. Fairmont Hotels dealt with an unintended outcome resulting from the language used in the will, and was not a case where the testator’s instructions were not followed by the drafting lawyer. Third, the Court affirmed that extrinsic evidence is allowed to establish an error in the will where the evidence comes from the drafting lawyer. While the court’s role is corrective and caution should be used, evidence of the testator’s intentions and the relationship to the potential beneficiaries is admissible where it is clear, cogent, and persuasive. An application judge’s conclusions are deserving of deference where they are rooted in the evidence.

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