Under certain circumstances, a mistake in a will may be rectified by the courts. The “equitable power of rectification”, as it was described in Robinson Estate v. Rondel, [2010] O.J. No. 2771 (S.C.J.),has long been recognized in Ontario, and may be utilized to cure an error or omission in a will as long as it was made by the will drafter and if not cured, would defeat the testator’s intentions.*
Should a different test be used to determine whether a will may be rectified? That argument was recently raised before the Ontario Court of Appeal in Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142. The appellants, who did not want the testator’s will to be rectified, took an interesting position – that the test for rectification articulated by the Supreme Court of Canada in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 also applies to rectification of a will. In Fairmont Hotels, the majority of the Supreme Court held:
If by mistake a legal instrument does not accord with a true agreement it was intended to record … a court may exercise its equitable jurisdiction to rectify the instrument so as to make it accord with the parties’ true agreement.
The appellants in Ihnatowych also took the position that “a presumption of validity” ought to apply to a testamentary instrument based on the standard set out in Fairmont Hotels, andthat the presumption should only be rebutted by “clear evidence that leaves the court with little to no doubt about a mistake”.
Both arguments regarding the application of Fairmont Hotels were raised for the first time on appeal. It is noted in the lower court decision, reported at Gorgi v. Ihnatowych Estate, 2023ONSC 1803, that both parties had previously agreed that the correct test for rectification of a will was set out in Rondel v. Robinson Estate, 2011 ONCA 493.
While the Court of Appeal declined to give effect to the appellants’ arguments regarding Fairmont Hotels because of the parties’ previous agreement, the Court also explained that the test from Fairmont Hotels was not a new and different test for rectification of a will. The principles governing rectification discussed in Robinson are consistent with the principles articulated by the Supreme Court – that rectification can only be used to correct an error in the recording of a legal instrument, and that it cannot be used in situations where the instrument produces an undesirable or unintended outcome. Indeed, in Robinson, the Court of Appeal expressly held,“Anglo-Canadian courts will not rectify a will to correct the testator’s mistaken belief about the legal effect of the words he reviewed and approved”.
The Court of Appeal also confirmed that the lower court correctly invoked Robinson to rectify the testator’s will, thereby excluding the appellants – the testator’s biological son and grandsons – as beneficiaries. The testator’s lawyer in this case had used a Standard Form will to leave the residue of the estate to the testator’s “issue” and “blood grandchildren”, despite receiving specific instructions from the testator to leave the residue to his two children by marriage, and their children. In fact, when the will was drafted, the testator had not even met the appellant son, who had been born out of wedlock. Justice Sanfilippo granted rectification after finding that the wording of the will, which would have allowed the appellants to share in the residue of the testator’s estate, did not carry out the testator’s actual intentions.
Appellate deference also had to be shown to Justice Sanfilippo’s decision because it was rooted in the evidence. The testator’s instructions regarding the will were clear, as was the evidence that the lawyer did not carry out those instructions. There also was no evidence that the testator specifically intended to include the appellants in his estate plan. In closing, the Court of Appeal recognized that “[t]he principle of testamentary freedom means that John was entitled to draft a will that excluded the appellants”.
In affirming Justice Sanfilippo’s decision, the Court of Appeal upheld one of the most important wills and estates cases from 2023. Not only did the firm blog about this case (see Revisiting the Law of Rectification in Ontario), but the lower court’s decision was also discussed in one of our podcasts (see #666 – Rectification and the Importance of Obtaining Clear Drafting Instructions when Drafting a Will).
Thank you for reading, and have a great day!