Courts do not want to interfere with a testator’s intentions, however, what happens if a testator’s intentions are misrepresented in their will?

Justice Valente addressed this issue in the recent case of Hofman v Lougheed et al. Shirley Cunningham passed away with a General Will and a Limited Will (the “Wills”) that divided her Estate into three equal shares, one for each of her three children. The share for her daughter Tenny Clark-Drost, was to be held in a trust. Upon Ms. Clark-Drost’s death, the trust was to be distributed to Ms. Clark-Drost’s children in equal shares.

The problem in the Wills arose with the definition of ‘children’. Ms. Cunningham’s Wills had an exclusion clause which meant that “children” did not include a person born outside of marriage (the “Exclusion Clause”). Ms. Clark-Drost had two daughters, the Applicant and the Respondent, and the Respondent was born outside of marriage. The Applicant was arguing that the Exclusion Clause should remain, and the Respondent was arguing that the Exclusion Clause did not represent Ms. Cunningham’s true intentions and should be removed.

Both the Applicant and Respondent relied on Justice Belobaba’s decision in Re Estate of Blanca Esther Robinson, and affirmed in Rondel v Robinson Estate, which stated that the court has the equitable jurisdiction of rectification “aimed mainly at preventing the defeat of testamentary intentions due to errors or omissions by the drafter of the will”. Justice Belobaba provided three circumstances where a court would rectify a will where it is otherwise unambiguous, the most relevant here being where the testator’s instructions have not been carried out. However, rectification is not available where there is no ambiguity, and a testator has simply mistaken the legal effect of the words in the will.

Justice Belobaba also commented on what type of evidence can be used to establish an error by the drafting solicitor. While direct extrinsic evidence is generally inadmissible, Justice Belobaba said that direct extrinsic evidence in the form of the testator’s instructions to the drafting solicitor can be used where it comes directly from the drafting solicitor. In the case at bar, the drafting solicitor, LeBrun, gave evidence supporting the Respondent’s position.

The Applicant argued that Ms. Cunningham had misunderstood the impact of the Exclusion Clause and therefore, the court has no jurisdiction to rectify the Wills. Following a review of the surrounding circumstances and LeBrun’s evidence, Justice Valente did not agree and instead found the real issue was that the drafting of the Wills did not conform with Ms. Cunningham’s instructions to have a gift over in the trust to Ms. Clark-Drost’s two daughters. LeBrun referred to the beneficiaries of the trust as a class rather than by name and then included the Exclusion Clause which was contradictory to the class gift. Therefore, the issue arose from the drafting solicitor’s mistake and resulted in the testator’s instructions not being carried out. Justice Valente found that the principles of rectification had been satisfied, the Respondent’s request for rectification should be successful, and the Exclusion Clause should be deleted.

This case reminds us that if your standard practice is to include some type of exclusion clause, it is important to discuss the implications of that with your clients, as they may not think to divulge family structures with you.

Thank you for reading!

Darien Murray