The Ontario Superior Court of Justice’s recent decision in Gorgi v Ihnatowych presents us with an opportunity to review the law of rectification in Ontario.
The Applicant, Ulana and the Respondent, Markian were the children of the deceased and were named as Estate Trustees in his last Will. Ulana has two children and Markian does not have any children. The last Will, executed in 2009, provided for the residue of the Estate to be distributed as follows:
10% of the residue of my estate is to be distributed between my grandchildren alive at the date of my death, in equal shares per stirpes.
The balance of the residue of my estate is to be paid and transferred to my issue alive at the date of my death in equal shares per stirpes.
A Notice of Objection was filed by Alexander on behalf of himself and his two minor children. Alexander claimed that he was a biological son of the deceased, thus making his children the deceased’s biological grandchildren. Alexander never met the deceased in person prior to 2009 but he received two gifts from the deceased and spoke to him on the telephone in 2008.
Alexander argued that given the language of the Will, his two children should be entitled to share in the 10% of the residue left to the deceased’s grandchildren and he should be entitled to the balance of the residue as a surviving issue.
Ulana brought an Application to rectify the clauses above, to exclude Alexander’s children from the grandchildren’s share of the residue and exclude Alexander from the balance of the residue.
The Court relied on the legal principles of rectification as set out in Re Estate of Blanca Esther Robinson, [2010] O.J. No. 2771 and affirmed in Rondel v. Robinson Estate, 2011 ONCA 493.
Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording of the will, the Court will rectify and correct unintended errors in three situations:
(1) Where there is an accidental slip or omission because of a typographical error or clerical error;
(2) Where the testator’s intentions have been misunderstood; or
(3) Where the testator’s instructions have not been carried out.
The Court accepted the Applicant’s position that the drafting solicitor erred in failing to carry out the deceased’s instructions. The affidavit evidence of the drafting solicitor contained handwritten notes and documents prepared by the deceased.
This evidence demonstrated that the deceased instructed the solicitor to draft a Will to provide the balance of the residue to Ulana and Markian and to provide the grandchildren’s portion of the residue to Ulana’s children. The Court found that the conditions from Robinson Estate had been met and ordered the rectification of the Will to exclude Alexander and his children.