The Will Says Something Your Parent Never Meant. Can A Court Fix It?

A will gets read after the only person who can explain it is gone. Sometimes what sits on the page is plainly not what the family understood was intended. Ontario courts can correct a will in that situation. The power is narrower than most people expect, and it turns on a question that has nothing to do with fairness.

The Three Situations

Where the wording of a will is clear and the testator reviewed and approved it, an Ontario court will correct an unintended error in three circumstances: an accidental slip or omission caused by a typographical or clerical error; where the testator’s instructions were misunderstood; or where the instructions were not carried out.

Every one of those is about the person who drafted the document. That is the design. The remedy exists to stop a testamentary plan being defeated by the drafter’s error, not to improve on the plan itself.

The Question That Decides Most Cases

Whose Mistake Was It?

If the lawyer wrote the wrong thing, a court can fix it. If the will was drafted exactly as instructed, the testator read it, approved it and signed it, and the problem is that the testator was wrong about what those words would legally do, a court cannot fix it.

The leading Ontario decision on rectification is a case where the court refused. The testator owned property in more than one country and had made a will in each. Her Canadian will contained a standard clause revoking all earlier wills. She read it. She approved it. She did not appreciate that it would also cancel the will governing her property abroad. The court accepted that revocation was not what she wanted and held it could do nothing. The words were her words. She had misunderstood their effect, and misunderstanding effect is not an error a court can correct.

What The Evidence Has To Look Like

Courts will look outside the four corners of the will at the circumstances surrounding its making. What they want is an affidavit from the lawyer who drafted it — the person who took the instructions, made the error, and can swear directly to what the testator asked for.

A beneficiary’s recollection of conversations, or an assumption formed after the death, is much weaker. Courts are openly wary of that kind of evidence, for reasons that are not difficult to guess.

What It Looks Like When It Works

In one Ontario case the drafting lawyer put the wrong class of shares into the will and also got the number of shares wrong, with the result that the gift could not have been carried out as written. He admitted both errors and explained how they happened. The will was corrected on both points.

In another, the clause dealing with the residue was drafted in terms broad enough that the estate could have passed to people the testator had never mentioned to his lawyer. The lawyer’s notes of the meeting, and the testator’s own handwritten instructions, showed what had been asked for. The wording was corrected to match.

Notice what both have in common. In each case a document made at the time — notes, handwritten instructions, correspondence — showed what the instructions were. The correction was proved, not argued.

If You Are Looking At This Now

The first question is not whether the will seems unfair. It is whether there is contemporaneous evidence of what was actually instructed, and whether the drafting lawyer will say what went wrong. Without both, a rectification application is difficult.

The court’s job here is corrective, not creative. It can repair a record of what was decided. It cannot build a plan that was never clearly communicated in the first place.

This article is general information about Ontario Estate Law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.