Rectification – When can a will be changed?

September 4, 2014 Hull & Hull LLP Litigation 0 Comments

Alexander Pope famously stated that “to err is human; to forgive, divine.” While this sentiment is generally a good rule to live by, when the error in question is in the drafting of a will, those involved can often be less forgiving. While in the past courts were often reluctant to make any changes to the wording of a will, through recent changes to the interpretation of the doctrine of rectification, the court in certain circumstances can change the wording of a will.

The court recently considered the rectification issue in McLaughlin v. McLaughlin. In McLaughlin, the court was faced with a situation in which the Deceased left a Primary Will and a Secondary Will. It was the position of the Applicant that it had been the Deceased’s intention to deal with the majority of her estate in the Primary Will, with the Secondary Will dealing solely with her real property. As a result of an alleged clerical error in the drafting to the wills however, both the Primary Will and Secondary Will contained identical bequests, with the Secondary Will omitting the residue clause dealing with the real property. As drafted, the effect of the Secondary Will was also to revoke the Primary Will, such that the Deceased would die partially intestate.

In looking to whether the court could rectify the Secondary Will, the court looked to the test employed by Justice Pattillo in Lipson v. Lipson, wherein the court provides the following test in determining whether it may add or delete words to a will:

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.

When the test from Lipson was applied to the facts in McLaughlin, the court ultimately concluded that it was a situation in which the Secondary Will should be rectified, ordering the apparent drafting errors in the Secondary Will to be fixed. As both McLaughlin and Lipson make clear, not all mistakes are final, and in certain situations the court may change the wording of a will.

Thank you for reading.

Stuart Clark

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