Tag: rectification of Wills

13 Aug

More Rectification: Righting Wrong Writing

Paul Emile Trudelle Wills Tags: , , 0 Comments

Last Friday I blogged on a rectification decision out of B.C. That case, Re Jamt, was applied in an even more recent decision on rectification, Simpson v. Simpson Estate. There, the judge (who was the same judge as in Re Jamt,) observed that  Re Jamt appears to be the sole decision considering the rectification provisions of B.C.’s Wills, Estates and Succession Act.

In the more recent decision of Simpson v. Simpson Estate, the deceased’s will provided that his shares in a corporation were to go to his two adult children. The rest of the estate passed to the deceased’s second wife. However, the shares were subject to a shareholder agreement, and the co-owner exercised his right to purchase the shares from the estate pursuant to the shareholder agreement. The deceased’s second wife, who was also the estate trustee, then took the position that the gift of the shares failed by reason of the operation of the shareholder agreement and the fact that the shares could not be transferred to the children.

The children applied to rectify the will. They asked that the will be rectified by adding a provision to the will so that the shares or the fair market value of the shares as received pursuant to the shareholder agreement passed to them.

The court granted the rectification sought. Extrinsic evidence from the deceased’s instruction meeting with the drafting solicitor was reviewed. The court concluded that;

“In my view, it is a reasonable inference that, since [the deceased] wanted [his children] to have the Shares, it is more likely than not that he also wanted them to receive the market value of the Shares if bought [under the shareholder agreement]. It would be unusual to want them to have the Shares but not their market value purchase price from their sale.”

Accordingly, the B. C. test for rectification was met:

  1. The deceased’s intention was that the shares or the value of the shares went to his children;
  2. The will as written failed to carry that intention out; and
  3. The failure was a consequence of an error or accidental slip. In this case, the error was that the deceased did not realize and was not advised by the drafting solicitor that the gift of the shares needed to specifically address the impact of the shareholder agreement.

Thank you for reading.

Paul Trudelle

06 Aug

Rectifying a Will, and the Olympics

Paul Emile Trudelle Wills Tags: , , 0 Comments

As I write this, the Tokyo 2020 Olympics are in full swing. Congratulations to all Canadian athletes competing.

This week’s blog is on rectification of a will. It also has an Olympic connection.

As reported in Jamt Estate (Re), Egil Ruud Jamt died in Vancouver, B.C. on August 16, 2016. He died leaving a will dated February 14, 2012. The will, prepared by a lawyer, named the deceased’s “nephew, Per Kare Jamt” as sole beneficiary of his estate.

The problem was that the deceased did not have a “nephew” by the name of “Per Kare Jamt”. He did, however, have a nephew by the name of “Per Martin Jamt”. Per Martin Jamt applied to rectify the will so that he was the beneficiary. The application was not opposed by any of the deceased’s intestate beneficiaries.

The court allowed the rectification. In doing so, the court considered the rectification provisions of B.C.’s  Wills, Estates and Succession Act, which allows the court to rectify a will where the court determines that the will fails to carry out the will-maker’s intentions because of:

  1. an error arising from an accidental slip or omission;
  2. a misunderstanding of the will-maker’s instructions; or
  3. a failure to carry out the will-maker’s instructions.

The court found that the deceased made an “accidental slip” in confusing his nephew’s middle name with the middle name of his predeceased brother. In finding that Per Martin Jamt was the correct beneficiary, the court considered the following:

  1. The deceased had many nephews, but only one with the name “Per”;
  2. “Per Kare”, named in the will, was the deceased’s brother, and predeceased the deceased;
  3. The deceased told the drafting lawyer that he wanted to benefit his brother’s youngest son: Per Martin Jamt fit this description;
  4. The deceased told the drafting lawyer that his nephew was about 60 years old. Per Martin Jamt was about 60 years old;
  5. The deceased provided in his will that if Per Kare Jamt was to predecease, Per Kare Jamt’s two children should have the estate. Per Martin Jamt had two children;
  6. The deceased provided the drafting lawyer with a telephone number for the named beneficiary. This telephone number matched Per Martin Jamt’s telephone number;
  7. The deceased provided the drafting lawyer with an address for the named beneficiary. This address matched Per Martin Jamt’s address;

and, now for the Olympic connection,

  1. The deceased told the drafting solicitor that he had recently seen his nephew in Vancouver in 2010 in connection with the Vancouver Winter Olympics. Per Martin Jamt visited the deceased in Vancouver in 2010 in connection with the Vancouver Winter Olympics!

(I admit: the Olympic connection was a weak one, but nonetheless.)

The court had no difficulty in concluding that the intended beneficiary was Per Martin Jamt.

Thanks for reading.

Paul Trudelle

03 Jun

Conner Estate: Will Drafting Errors and Rectification

Suzana Popovic-Montag Estate Planning, Litigation, Wills Tags: , , , , 0 Comments

An oft-repeated maxim of equity is that “equity regards substance rather than form”. Just outcomes, it is thought, should not be frustrated by mere technical shortcomings or other superficial flaws. However, in applying this principle, courts are mindful not to neglect form in every case or to too great an extent, lest legal drafting becomes slipshod and legal results unpredictable.

A recent British Columbia decision dealt with, in part, the dichotomy of form and substance in the context of will drafting errors. In Conner Estate v. Worthing, there were three patent errors on the face of the deceased’s will: (1) the will provided for 150% of the sale proceeds of the deceased’s house, owing to, seemingly, a mathematical error (50% given to the husband, 20% to five others); (2) the residue was gifted twice, once to the husband and once to the children; and (3) several lines appeared to have been missing. While the court acknowledged that it was generally barred from adding words to erroneous wills (though it had the power to delete words), it found that this case was an exception to the rule, for the deceased’s intentions could be clearly ascertained from the extrinsic evidence – the solicitor’s notes and the deceased’s letter of instructions – and the solicitor was responsible for the errors:

“While the exception to the prohibition against adding words on an application to rectify a will at the court of probate stage in Moiny Estate is extremely narrow, I conclude that the facts in this case fit within that narrow exception. Ms. Conner’s stated intentions should not fail simply because her solicitor failed to draft her will in a manner that gave effect to her wishes.”

A similar result likely would have been reached in Ontario, where it has long been held that in matters of “equivocation” – when the words in a will apply to two or more persons – courts can look to extrinsic evidence to infer a testator’s actual intention. If a will is not equivocal, and the testamentary intention can be discerned in the will, the courts cannot examine extrinsic evidence – and whatever the substance, the form will prevail.

As we have previously written, the courts may be hindered from rectifying drafting errors in scenarios where the errors are subtle and there is little extrinsic evidence of true testamentary intention. It is important, therefore, for both drafting solicitors and testators to carefully review their wills before executing them, and to watch out, in particular, for those minor errors which may burn while emitting no smoke.

Thank you for reading!

Suzana Popovic-Montag and Devin McMurtry.

23 Mar

Hull on Estates #511 – Rectification of Wills

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Uncategorized Tags: , , , , 0 Comments

This week on Hull on Estates, David Smith and Rebecca Rauws discuss the rectification of Wills, including the criteria that the Court will consider in determining whether it can rectify a Will.

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on David Smith.

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