When a testator makes a “final” will, it may not actually be final. Under limited circumstances, a court may amend or revise a will after the testator’s death through rectification. 

In Ontario, rectification is available to remedy unintended drafting errors made by a will-drafter, usually counsel,which would defeat the testator’s intentions. This relief can usually only be granted in one of three situations:

• where there is a typographical error or clerical error;
• where the testator’s intentions were misunderstood; or
• where the testator’s instructions have not been carried out.

However, the power to rectify a will is not included in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). As noted in Rondel v. Robinson Estate, 2011 ONCA 493, rectification is an equitable remedy in Ontario. 

While rectification may be granted under similar circumstances elsewhere in Canada, the source of the court’s authority to rectify a will tends to vary. In British Columbia, for example, rectification may be ordered pursuant to section 59 of the Wills, Estates and Succession Act, S.B.C. 2009 c. 13 (the “WESA”). At first glance, section 59 appears similar to the law in Ontario, as it provides that a will may be rectified if it fails to carry out a testator’s intentions because of “(a) an error arising from an accidental slip or omission, (b) a misunderstanding of the will-maker’s instructions, or (c) a failure to carry out the will-maker’s instructions”. Unlike the law in Ontario, however, section 59 of WESA does not stipulate that anerror or misunderstanding must be made by the will-drafter. 

This small discrepancy can have a significant impact on the circumstances under which rectification can be ordered, as aptly demonstrated by the British Columbia Court of Appeal’s decision in Simpson v. Zaste, 2022 BCCA 208. The testator in this case left his shares in a company to his sons in his final will, but a shareholder agreement that the testator had previously executedrequired his shares to be transferred to his business partner at fair market value, less the proceeds of a life insurance policy payable to another beneficiary. Both the lower court and the appeal court altered the will through rectification, although the manner in which each court rectified the will was different. The Court of Appeal ultimately varied the will so that the sons would inherit the fair market value of the shares paid by the testator’s partner, less the value of the insurance policy, by amending the will to address the impact of the shareholder agreement on the testator’s bequest to his sons.* 

In granting this relief, the majority of the Court of Appeal endorsed a large and liberal interpretation of section 59 of WESA, explaining the type of errors that this provision can be used to remedy: 

… While the error must arise from “an accidental slip or omission”, it may as readily be an error on the part of the will-maker as on the part of the will-drafter or transcriber. What matters is that it must be an error; it must [be] unintentional; and it must be one that prevents the will-maker’s true intentions from prevailing. 

Had the court required that the error be made by the will-drafter, rectification would not have been available in Simpson, since the testator had not even provided the shareholder agreement to his counsel or consulted with her as to how the agreement would impact his will. As noted by the Court of Appeal, the testator’s mistake in this case was not about the legal effect of his will; rather, it was about the legal effect of the shareholder agreement on the transmission of the testator’s company shares.

On appeal, the appellant argued that rectification was only intended to cover errors of will drafters and transcribers, relying heavily on the Ontario Court of Appeal’s decision in Rondel. However, the BC Court of Appeal declined to follow Rondel, finding the case to be distinguishable and noting that the law applied in Rondel was “unusually archaic”. 

In light of the BC Court of Appeal’s statements in Simpson, it may be time to consider updating the SLRA to provide Ontario courts with a statutory power to rectify wills. While it appears unlikely that the circumstances under which rectification may be granted will be expanded under the common law in Ontario any time soon, if the SLRA were amended, this remedy could be granted in more situations, depending on how the legislative provision is drafted. 

Thank you for reading and have a great day,

Ian

* The revised clause was set out at paragraph 153 of the Court of Appeal’s decision, and states: 

. . . to transfer all my shares I own at the date of my death in NORTH AMERICAN GANTRY & EQUIPMENT SERVICES CO. LIMITED, or, in the event those shares must be transferred to the surviving partner pursuant to the provisions of the March 19, 2001 Consolidated Shareholders Agreement, the value payable to my estate by that partner net of life insurance proceeds equally between my children KIRSTEN ANN SIMPSON and CHRISTOPHER MARK SIMPSON . . . .

The words added by the court are underlined.