Before a Canadian court will rectify a will, there are a number of prerequisites which must be satisfied. Not only must an applicant establish a drafting error in the will, but there must also be clear evidence of the testator’s intentions. As demonstrated by the recent decisions of the Court of King’s Bench and the Alberta Court of Appeal in Constant Estate, the courts are unwilling to speculate as to how a testator meant to dispose of their estate, even if there is a deficiency on the face of the testator’s will.
Background
The testator in this case died leaving a will that failed to make any specific or residual gifts to any beneficiary. The will did, however, appoint a long-time friend as the estate’s personal representative. It further provided that, in the event that the personal representative predeceased the testator, his estate would pass to the Dogwood Foundation for Socialist Education.
The testator had no surviving spouse, children, or siblings. As a result, his cousins applied for a declaration that they were entitled to inherit the residue of the estate on a partial intestacy under Alberta’s Wills and Succession Act (the “WSA”).
In response, the personal representative cross-applied for a declaration that she was the residuary beneficiary of the estate, relying on principles of will interpretation and also seeking rectification of the will. She argued that the contingent gift to the Dogwood Foundation necessarily implied that, if she survived the testator, he intended her to inherit the residue of the estate.
Cross-Application Denied by Chambers Judge: Constant Estate (Re), 2025 ABKB 346
Justice Hollins granted the cousins’ application for a declaration of a partial intestacy with respect to the residue of the estate and denied the application of the personal representative.
Despite the inclusion of a contingent gift to the Dogwood Foundation, if the personal representative predeceased the testator, Justice Hollins concluded that the will did not indicate that the testator intended to leave the residue of the estate to the personal representative. Conflicting inferences arose from the will, as other will clauses contemplated the personal representative administering the estate and were “inconsistent” with the testator intending to designate her as a specific or residual beneficiary. Justice Hollins even observed that some of the administrative powers and directions provided to her would have been “completely unnecessary” had the testator intended her to inherit the residue of the estate.
There was also no extrinsic evidence corroborating that the testator intended to gift the residue of the estate to the personal representative. While the personal representative put a text message before the court that had been sent to the testator in 2021, which referred to him “having left it all” to her, the court found that the unanswered text message was not corroborative of testamentary intent and was instead a clumsy attempt to prompt a response from the testator regarding his will. Affidavit evidence of the testator’s longstanding friendship with the personal representative was also insufficient to establish testamentary intent to leave his estate to her. Justice Hollins emphasized that a close personal relationship does not inevitably translate into a testamentary gift, and that it was equally plausible for a testator to intend to entrust a close friend with the administration of his estate rather than its beneficial ownership.
Lastly, the court declined to rectify the will under section 39 of WSA. The personal representative failed to establish that rectification was necessary to give effect to the testator’s intentions, as there was no “clear and convincing evidence” of what the testator had actually intended. Justice Hollins observed that “[e]ven if a clause was added to create a residual beneficiary, it is simply not clear who that would be.”
Affirmed on Appeal: Constant Estate (Re), 2025 ABCA 329
The Alberta Court of Appeal upheld Justice Hollins’ decision, noting that the only way to grant the relief sought by the personal representative would be to rectify the will to name a residual beneficiary. Without such a clause, the interpretation advanced by the personal representative was not possible – “even without treating any clause in the will as inconsistent with an intention that the appellant receive the residue of the estate, the will, as drafted, cannot be interpreted as naming a residual beneficiary.”
There was also no obvious error in the chambers judge’s reasons dismissing the application for rectification. An application under section 39 of WSA requires “clear and convincing evidence … that the will does not reflect the testator’s intentions because of (a) an accidental slip, omission or misdescription, or (b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will.” Since there was no evidence of the testator’s instructions before the court, and the other information had limited probative value, the Court of Appeal concluded that the chambers judge had been entitled to dismiss the claim for rectification on the basis that the testator’s intentions were not sufficiently clear.
Takeaways for Practitioners
The courts’ decisions in Constant Estate underscores the limits of rectification, even when faced with a will that appears to contain an obvious omission, such as the failure to name a residuary beneficiary — courts will not supply missing provisions without clear and convincing evidence of testamentary intent, and will not speculate in order to avoid an intestacy. Rectification is a narrow remedy, particularly where an applicant seeks to add substantive provisions to a will.
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