Rectification of a Will where Error Made by Will Drafting Lawyer
In its recent decision in Daradick v. McKeand Estate, 2012 ONSC 5622 (CanLII), the Ontario Superior Court of Justice once again considered the Court’s power to rectify a will, particularly in circumstances where the testator’s instructions have not been followed by the lawyer drafting the will.
In the case, the will drafting lawyer had been instructed by the testator to include a bequest of her house to her daughter, who had moved into the house to help and care for the testator and her predeceased husband. A similar bequest had been included in the testator’s prior wills. The drafting lawyer’s notes from the meeting where he received instructions from the testator respecting her last will confirmed that the testator wanted to continue to include a bequest of her house to her daughter. Through inadvertence, the bequest was not included in the testator’s last will. Following the testator’s death, the error was discovered and the daughter applied to the Court for a rectification of the testator’s last will.
In an unchallenged affidavit filed in support of the daughter’s rectification application, the drafting lawyer acknowledged that he made an error and did not include the bequest of the testator’s house in her will, as he had been instructed to do.
In the decision, Mr. Justice B.H. Matheson reviewed recent caselaw respecting rectification in the estates context, and quoted from the Ontario Court of Appeal’s recent decision in Robinson Estate v. Rondel,  O.J. No 3084, as follows:
Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors in three situations:
(1) where there is an accidental slip or omission because of a typographical or clerical error;
(2) where the testator’s instructions have been misunderstood; or
(3) where the testator’s instructions have not been carried out.
The equitable power of rectification, in the estates context, is aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will. This is a key point. Most will-rectification cases are prompted by one of the above scenarios and are typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error.
Following his review of the applicable law of rectification, Mr. Justice B.H. Matheson concluded that before a court can delete or insert words to correct an error in a will, the Court must be satisfied that:
1. 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;
2. The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
3. The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
4. 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.
In the circumstances of the case, Mr. Justice B.H. Matheson held that the error of the drafting lawyer could and should be corrected and, therefore, the testator’s last will would be rectified to include the bequest of the house to her daughter. Mr. Justice B.H. Matheson stated that, “Not to do so would be tragic. If the will were not rectified then the only other course of action would be a lawsuit against the lawyer or the estate. This would be very costly.”
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CORRECTION: The blog entitled “A Prorogation Primer” posted on October 18, 2012 incorrectly stated that Bill 173 which provided for amendments to the Estate Administration Tax Act, 1998 had not yet passed final reading and therefore would be killed as a result of the prorogation of Parliament. In fact, this Bill has been passed; it is simply not yet in effect, and therefore the prorogation of Parliament will not have the stated effect. We apologize for any confusion.