Rectification of Mistakes – Is what is written final?

January 16, 2012 Hull & Hull LLP Estate & Trust Tags: , 0 Comments

Mistakes are a fact of life. Even the most careful person, who always makes sure to double check their work, may one day inadvertently make a mistake. If luck is on your side hopefully these mistakes do not have too large an impact, and can easily be corrected. But what happens when a mistake is made in the drafting of a will? Can these mistakes easily be corrected, or is the testator (and their intended beneficiaries) stuck with the will as written, mistakes and all?

There has long been a debate over whether the court has the power to add new words to a will in order to correct a mistake, or merely the power to delete mistakenly included words.  Indeed A.H. Oosterhoff in his seminal text "Oosterhoff on Wills and Succession", states that while a court of probate may strike out errors, it may not substitute new words.  But is this truly the case? Are the words as written in the will the only words that may be admitted to probate? Can no additions be made?

Recently in Lipson v. Lipson, the Ontario Superior Court of Justice gave some guidance in understanding under which circumstances the court can add or delete words to a will. In coming to his decision, Justice Pattillo states that after reviewing the jurisprudence on the matter, it has long been an established principle in Ontario that the court has the power to delete or add words to a will by necessary implication.In Lipson, Justice Pattillo formulates a test to determine under what circumstances the court can add or delete words to a will. Justice Pattillo states that this test is to apply not only in circumstances where words are omitted, but also in circumstances in which the incorrect words were inserted. Before the court can delete or insert words to correct an error in a will, the court must be satisfied that:

i. Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
ii. The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
iii. The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
iv. The proposed correction of the mistake, by the deletion of words, the addition of words, or both, must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.

So long as the proposed addition or deletion meets all four elements of the test as contained in Lipson, the court should be willing to rectify the mistake and allow the true intentions of the testator to become reality. Whether the courts will openly embrace Lipson remains to be seen, but hopefully with this test we will now finally have some closure on the debate of when mistakes can be rectified in a will. Mistakes happen. Hopefully we now have a mechanism to correct them.

Ian Hull – Click here for more information on Ian Hull

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