The recent case of Isard Estate v. Gunn, 2025 ONCA 139 serves as a powerful reminder of the significant impact even minor drafting errors can have on the distribution of an estate. Patricia’s 1996 will, prepared by the same lawyer who drafted her partner Daphne’s will, omitted a residue clause. This oversight created unintended consequences.
Patricia passed away in 2012, leaving Daphne her personal and household belongings, but no instructions for the remainder of her estate, which included investments and bank accounts worth approximately $500,000. In the absence of a residue clause, these assets passed as on an intestacy to her brother Michael. Following Michael’s death years later, the funds were passed on to his children, with none of the residue reaching Daphne.
After Daphne’s death in 2018, her estate sought rectification of Patricia’s will. Rectification is a legal remedy that allows courts to correct mistakes in a will when the testator’s clear intentions can be proven. Daphne’s estate trustee argued that the omission of the residue clause was a drafting error and pointed to a 1999 codicil that referred to Daphne as Patricia’s “principal heir.” This codicil outlined what should happen if Daphne predeceased Patricia and appeared to confirm that Patricia intended for Daphne to inherit the residual estate. However, the codicil was not properly witnessed, making it legally invalid. Moreover, no evidence showed that Patricia’s lawyer ever received the codicil or understood Patricia’s intention to include a residue clause.
When the matter came before the court, the judge acknowledged that the absence of a residue clause was likely a mistake. However, the judge emphasized that rectification requires clear, convincing evidence of the testator’s original intent. In this case, the evidence—an invalid codicil and the lack of testimony from the drafting lawyer—did not meet that standard. The judge concluded that the evidence was insufficient to demonstrate Patricia’s intent to leave the residue to Daphne. The Court of Appeal upheld this finding.
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