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:
- The deceased’s intention was that the shares or the value of the shares went to his children;
- The will as written failed to carry that intention out; and
- 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.
Amendments to Alberta’s succession legislation took effect in 2012 to expand the authority of the courts to order that a will is valid, notwithstanding its failure to comply with the formal requirements otherwise imposed under the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”). Specifically, section 37 of the Act reads as follows:
Court may validate non-compliant will
37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.
Section 39(2) of the Act addresses the issue of the rectification of a will that has not been signed. If a court is convinced by “clear and compelling evidence” that the will was not signed as a result of pure mistake or inadvertence and the testator intended to give effect to the document as his or her last will, the court may add a signature to rectify the will.
The recent decision of Edmunds Estate, 2017 ABQB 754, provides clarification regarding the limits of the court’s ability to validate an unsigned will. In that case, a paralegal had received instructions from the deceased and prepared a will that reflected her instructions, but the new will was never signed by the deceased before she died. Justice C.M. Jones of the Alberta Court of Queen’s Bench found that the amended Act did not provide the Court with the authority to validate an unsigned will in the absence of clear and convincing evidence that the deceased had intended to sign the document and/or that she had failed to do so by inadvertence or mistake. The deceased could not have been said to have failed to sign the document by mistake, as she died before making arrangements to execute the will, and Justice Jones found that the evidence that the draft will was intended to be her last valid will fell short of what was required by the legislation.
In Ontario, the doctrine of strict compliance applies. Unless its defects can be cured by way of interpretation or rectification (the scope of which remedy remains limited), a will that does not comply with the formal requirements of the Succession Law Reform Act, RSO 1990, c S.26, will not be treated as valid and cannot be admitted to probate.
With several other provinces recently adding what Justice Jones refers to as “dispensing clauses” into their respective succession legislation, it will be interesting to see whether Ontario follows suit, opening the door to substantial compliance, in time.
Thank you for reading.
Other blog entries and podcasts that may be of interest:
I recently came across an article which describes how a woman in the United States inadvertently gifted a share of her estate to the wrong beneficiary.
It would appear Esther Patton wanted to thank her local fire department for their dedication and service to her over the years. She instructed her lawyer to include a bequest to the Sebastopol Fire Department in her Will. However, Ms. Patton was mistaken, as it was in fact the Gold Ridge Fire District who had responded to her calls approximately once a month over the course of several years.
While the two fire departments were located in close proximity to one another, they serviced different areas.
When the Sebastopol Fire Department received a cheque for nearly $82,960.00 USD and a letter explaining that the funds were a token of Ms. Patton’s gratitude, it became clear that an error had been made.
Thereafter, uncertainty arose as to who was legally entitled to the bequest, Sebastopol or Gold Ridge.
There was no ambiguity on the face of the Will, in that the Will clearly directed the gift was to go to Sebastopol. However, on the totality of the evidence, it was clear Ms. Patton had intended that gift go to Gold Ridge.
The Ontario Court of Appeal case, Robinson v. Rondel, confirmed that where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, the court may rectify the will and correct unintended errors in three situations:
(a) where there is an accidental slip or omission because of a typographical or clerical error;
(b) where the testator’s instructions have been misunderstood; or
(c) where the testator’s instructions have not been carried out.
In this case it was not necessary for the parties to seek the assistance of the Court as they amicably agreed that that Sebastopol would keep 1/3 and Gold Ridge would keep the remaining 2/3.
Nevertheless, this article illustrates the issues that can arise when inadvertent mistakes are made in the preparation of a Will.
Other Hull & Hull LLP Blogs & Podcasts that may be of interest to you:
- More on rectification
- Rectification revisited
- Material changes to the doctrine of equitable rectification
Thank you for reading.
The power of the Court to rectify any sort of legal instrument is a potent remedy; Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 at paras. 12-15 and 57 (S.C.C.). Ultimately, whether the context is a contract or a Will, the rationale is very much an equitable one – it is unfair to take advantage of an innocent mistake. In the context of rectification of drafting error in Wills, the
re are three requirements:
(1) where there is an accidental slip or omission because of a typographical or clerical error;
(2) where the testator’s instructions have been misunderstood; or
(3) where the testator’s instructions have not been carried out.
A recent example is The Bank of Nova Scotia Trust Company v Haugrud, 2016 ONSC 8150 (Ont. S.C.J.). Here an innocent mistake was manifested on the face of the Will in that there was a mistaken reference to the wrong class of shares in a certain corporation owned by the deceased. The Hon. Justice Mesbur held:
 Here, the lawyer who drafted the will unequivocally admits his mistakes. The context for the mistakes is confirmed by the accountant, who sets out the background of how the mistakes occurred. Essentially, the confusion around the class of shares arose because the accountant was referring to the initial reorganization plan for Davwel, instead of the slightly different plan that was ultimately put in place. Although the deceased clearly and accurately set out the shareholdings in his letter to the accountant, neither the accountant nor the lawyer used the correct information, and instead maintained their reference to the earlier plan regarding the class of shares. I conclude it was an accidental slip or omission that resulted in the mistake regarding the class of shares.
 I also conclude the drafting solicitor misunderstood or failed to carry out the testator’s instructions, in that he failed to refer to either the correct class of Davwel shares or to the correct number of shares that would have to be redeemed in order to carry out the testator’s instructions.
 All three criteria in Robinson have been met…
Here the power to rectify allowed the situation to be corrected. One might note that this equitable power is especially useful in that it provides the Court with a greater power than merely correcting a false description. In such cases the maxim demonstratio non nocet, cum de corpore constat (‘a false or mistaken description does not vitiate’) operates such that non-essential or surplus words which are inaccurate may be ignored provided that the remaining true descriptive words are sufficiently certain; Re Beauchamp (1975), 8 OR (2d) 2 (H.C.J.). It does not, however, allow for the addition of of the words that were in fact intended by the deceased.
Have a nice weekend!