Will Rectified Where Residue Clause Inadvertently Left Out

July 15, 2014 Hull & Hull LLP Uncategorized 0 Comments

Recently, the Ontario Superior Court rectified a Will that contained no residue clause.

In McLaughlin v. McLaughlin, 2014 ONSC 3162 (CanLII), The deceased died leaving a primary and secondary Will.  The primary Will disposed of the deceased’s assets other than her house, and the secondary Will disposed of her house.  However, through inadvertence, the secondary Will did not contain a residue clause.  If uncorrected, the residue under the secondary Will would pass on an intestacy to the deceased’s five children, rather than only three children as set out in the residue clause under the primary Will.

To make matters worse, the revocation clauses of both Wills provided that the testator revoked “all wills made before this will, but not the Will made [on the same date] to dispose of [the deceased’s house].”  The effect of this would be to revoke the primary Will, and, again, the assets under the primary Will would pass on an intestacy to all five children, rather than the three children intended by the deceased.

To make things even worse, each of the Wills contained a clause making specific bequests to grandchildren and daughters-in-law.  The effect of this was that these beneficiaries could claim entitlement to two separate bequests: one under the primary Will and one under the secondary Will.

The estate trustee sought rectification.  The two children not named in the Wills opposed.

The Court noted that “the equitable power of rectification is aimed mainly at preventing the defeat of testamentary intentions due to errors or omissions by the drafter of the will: Robinson Estate v. Robinson, 2010 ONSC 3483, at para. 25 [sic: cite in the case is to the Robinson decision on costs].

The Court endeavoured to avoid an intestacy.  There was evidence before the Court that in a prior Will, the deceased had prepared wills that benefitted only three of her five children.  The deceased’s clear instructions were to benefit only three of her five children.

The Court stated that if the deceased meant what was in the secondary Will, then “I must find that she meant to create the intestacy even though the document that created the intestacy also duplicated the bequests to the grandchildren and daughters-in-law. I would have to find that in one document, [the deceased] wanted to duplicate the bequests, revoke a second document being signed at the same time and create an intestacy the effectively shared the entire estate with all of her children rather than do that directly. That would make no sense.”

The Court concluded that the deceased’s instructions were not carried out as a result of the “clerical errors”.  The errors in the secondary Will were rectified.

Thanks for reading,

Paul Trudelle 

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