In recent posts, I’ve emphasized the importance of working with a lawyer to draft your will. Today, I want to explore a case that underscores just how crucial this step can be. Gorgi v. Ihnatowych, 2023 ONSC 1803 is a recent Ontario case that highlights the vital role drafting lawyers play in estate litigation, especially when disputes arise over a will’s interpretation.

In Gorgi v. Ihnatowych, the Ontario Superior Court was faced with ambiguous language in the deceased’s will, specifically regarding the distribution of the estate’s residue. Family members disagreed on how the will should be interpreted, which led to a court challenge. The drafting solicitor’s notes and testimony ultimately proved instrumental in guiding the court’s interpretation.

The solicitor’s records provided reliable insight into the testator’s wishes and reasoning behind certain provisions, which were not entirely clear in the will itself. Relying on these contemporaneous notes, the court clarified the testator’s intentions and rectified the will to ensure an accurate distribution of the estate as intended.

This case underscores the value of comprehensive solicitor notes in estate litigation. These notes capture critical details that may not be fully expressed in the will, helping ensure that the testator’s wishes are honoured. Some of the most valuable insights that solicitor notes can provide include:

• Detailed Instructions: Testators may give specific directions that are simplified or generalized in the final will. Solicitor notes often preserve these specifics, providing the court with an unfiltered view of the testator’s preferences.
• Mental State Observations: Drafting solicitors are trained to evaluate and document the testator’s mental capacity and cognitive state. These observations are crucial for preventing or addressing claims of undue influence or lack of capacity, common grounds for contesting a will.
• Clarification of Ambiguities: Language in a will can sometimes be interpreted in various ways, leading to ambiguity. Solicitors’ notes often clarify unclear instructions, providing essential context for the court to interpret the will as intended.

Gorgi v. Ihnatowych reinforces the importance of thorough, detailed record-keeping for estate lawyers. Drafting solicitors are encouraged to document all aspects of their interactions with clients, as these notes can serve as critical evidence if a will is later contested. Key practices include maintaining clear records of the testator’s intentions, mental state, and any clarifications made during the drafting process.

With November often seen as a time to create or review wills, Gorgi v. Ihnatowych serves as a timely reminder of the benefits of involving a lawyer in the drafting process. A skilled lawyer not only ensures that a will is legally sound but also provides a record of the testator’s intentions. This record can be invaluable in preventing or resolving conflicts among beneficiaries.

In short, anyone preparing or revising their will should seriously consider working with an experienced lawyer. Proper documentation and guidance can prevent future legal challenges, provide peace of mind, and ensure that your legacy reflects your true intentions.