In Ontario, the courts may correct unintended drafting errors in a will through the equitable power of rectification. This relief is available under the common law, even where there is no ambiguity on the face of a will, in three situations – (1) where there is an accidental slip or omission because of a typographical or clerical error; (2) where the testator’s instructions were misunderstood; or (3) where the testator’s instructions were not carried out: see Ihnatowych Estate v Ihnatowych, 2024 ONCA 142.
Typically, when rectification is granted, it is to correct a drafting error made by a lawyer. Not only is evidence from the drafting lawyer admissible on an application for rectification, but it is “indeed expected,” as noted by the Superior Court of Justice in Mansour v Girgis, 2024 ONSC 1611.
However, not all valid wills are drafted by lawyers. For example, holograph wills, drafted by the testator in their own handwriting, are also valid in Ontario under section 6 of the Succession Law Reform Act. This raises an interesting question – could a holograph will be rectified if it contained a drafting error? Is it possible to harness the equitable power of rectification if no lawyer was involved in a will’s preparation?
This is something of a mystery. There appears to be no recent reported case law in Canada where a court was asked to rectify a holograph will.* Instead, the reported cases where rectification has been granted deal with wills drafted by lawyers. However, the case law also does not expressly indicate that holograph wills cannot be rectified. Rather, it simply provides that rectification is primarily available for correcting drafting errors made by a will drafter, and does not qualify the availability of this relief based on who drafted the will.
Even if no Canadian court has yet rectified a holograph will, there are compelling reasons to think that holograph wills could, in limited circumstances, be rectified under the common law.
One salient consideration is the fact that evidence from the will drafter is not always needed to obtain rectification of a will. The Court of Appeal’s recent decision in Elizabeth Casey Cooke Family Trust v Dioguardi, 2026 ONCA 85, affirmed that an application for rectification may proceed before the court performs its probate function, even if there is no evidence from the lawyer who drafted the will, admitting to a drafting error. There is no indication that this principle cannot be extended to will drafters other than lawyers, or that the availability of rectification depends on the identity of the will drafter. If this is indeed the case, an application for rectification of a holograph will brought while the court sits as a court of probate would not fail simply because there is no direct evidence from the testator confirming a drafting error. However, for such an application to succeed, there would have to be other sources of evidence to confirm the testator’s intent and prove that the will contains a drafting error, such as correspondence or direct affidavit evidence.
Another salient consideration is the fact that there is reported case law where a will was rectified to correct an accidental slip made by a testator. In Jamt Estate (Re), 2021 BCSC 788, the British Columbia Supreme Court rectified a will where a beneficiary was misnamed due to the testator confusing his nephew’s middle name with that of his brother, who predeceased the testator.** While this case did not deal with a holograph will, meaning the slip technically was not attributed to the will drafter, it is useful in confirming that rectification can be utilized to correct slips made by a testator, and not just a drafting lawyer.
The court’s decision in Jamt could be useful in Ontario, since there is no case indicating that the courts are barred under the common law from correcting drafting errors caused by the testator, rather than a separate will drafter. Admittedly, the Court of Appeal noted in Ihnatowych that rectification is “primarily concerned with ‘preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will’” (emphasis added). However, the common law test does not appear to go so far as to require a drafting error to be made by the will drafter, separate from the testator.
That said, it is quite clear that not all mistakes made by a testator may be rectified. It is well-established in Ontario that “rectification is not available to correct a testator’s mistaken belief of the legal effect of words that the testator reviewed and approved”: see Hofman v Lougheed et al, 2023 ONSC 3437. It is also recognized that rectification can only be granted to align a will with what the will maker intended to do, rather than what the will maker should have intended to do, as noted by the British Columbia Court of Appeal in Simpson v Zaste, 2022 BCCA 208.
If the courts in Ontario are asked to rectify a holograph will, it may be the case that only one type of drafting error – accidental slips and omissions – may be rectified. It is arguable that the other types of drafting errors that can be remedied through rectification – misunderstanding the testator’s instructions and not carrying out those instructions – implicitly require the will drafter and the testator to be separate individuals. It seems implausible that the drafter of a holograph will would give themselves instructions, let alone misunderstand those instructions or not carry them out.
Under the common law, accidental slips or omissions must result from a typographical or clerical error. Accordingly, the court’s ability to rectify a holograph will may end up turning on what the court determines is a typographical or clerical error – at this time, the scope of what constitutes a ‘clerical error’ in a holograph context is not settled. It seems feasible that a slip in a holograph will similar to the testator’s slip in Jamt, arising from inadvertence,could be classified as a clerical error and rectified so that the holograph will reflects the testator’s testamentary intent. Moreover, it would arguably be inequitable if rectification were not available to correct such accidental slips made by a testator, so long as the mistake does not go to the testator’s belief about the legal effect of the words in their will.
Although the question of whether errors in a holograph will may be rectified remains unsettled, the existing case law provides a principled pathway of sorts for the rectification of holograph wills. If rectification can be obtained without direct evidence of a drafting error from the will drafter, it is feasible that a holograph will could be rectified, so long as there is admissible evidence which clearly establishes the testator’s intent and that the testator made an accidental slip that would defeat their testamentary intent if it is not corrected.
Have a great day,
Suzana.
* In Robinson Estate v Robinson, 2010 CarswellOnt 4576, the court referred to Long Estate v Long, 1979 CarswellNfld 64, a case where the testator drafted and signed her own will and mistakenly left the residue of her estate for the education of her brother’s great grand children, but actually meant to say “grand children.” This case is not particularly useful in assessing whether holograph wills may be rectified, since the court did not consider the common law test for rectification. Instead, it held that the court could do nothing to correct the mistake in the will because the will was not ambiguous, making “the secondary evidence of what [the testator] may have intended to write or what she meant by what she had written … not pertinent.”
** It should be noted that the law governing rectification is different in British Columbia than under the common law. Rectification is available in B.C. under section 59 of the Wills, Estates and Succession Act, whereas there is no similar legislative provision in the SLRA. Despite this discrepancy, the circumstances under which rectification is available in British Columbia and Ontario are similar – in both provinces, a will can only be rectified to remedy accidental slips or omissions, where the testator’s instructions were misunderstood, or where those instructions were not carried out. However, whereas in Ontario rectification has been used to correct errors made by the will drafter, the courts in British Columbia have interpreted section 59 as allowing the court to correct accidental slips and omissions on the part of both the will maker and the will drafter or transcriber, as noted by the British Columbia Court of Appeal in Simpson v Zaste, 2022 BCCA 208.