Tag: rectification

11 Dec

When can Alberta courts validate unsigned wills?

Nick Esterbauer Wills Tags: , , , , , 0 Comments

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.

Nick Esterbauer

Other blog entries and podcasts that may be of interest:

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 1

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 2

·        More on Rectification

24 Feb

A Bequest Made in Error

Laura Betts In the News, Litigation, Wills Tags: , , 0 Comments

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:

Thank you for reading.

Laura Betts

06 Jan

More on Rectification

David Freedman Estate & Trust, Litigation, Wills Tags: , 0 Comments

OLYMPUS DIGITAL CAMERAThe 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.

See Robinson Estate v. Rondel, 2011 ONCA 493 (Ont. C.A.).

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:

[19]                   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.

[20]                   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.

[21]                   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!

David

Other articles you might enjoy:

Material Changes to the Equitable Doctrine of Rectification

The Doctrine of Rectification and Proof in Solemn Form

Rectification – When can a will be changed?

14 Dec

Material Changes to the Equitable Doctrine of Rectification

Suzana Popovic-Montag General Interest, In the News, Litigation Tags: , , , 0 Comments

Last week, the Supreme Court of Canada released two decisions concerning the equitable doctrine of rectification: Canada (Attorney General) v. Fairmont Hotels Inc. and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General). Fairmont deals with the equitable doctrine while Jean Coutu deals with rectification under Quebec civil law. Together, these decisions materially change the law of rectification by narrowing its scope. Both cases concern rectification for the purpose of tax planning. It remains to be seen what effect, if any, these decisions will have in the estates context.

Facts

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In Fairmont, Fairmont Hotels and Legacy Hotels entered into a financing agreement that was intended to operate on a tax-neutral basis. When the financing agreement was terminated to allow Legacy Hotels to sell two hotels, there was an unanticipated tax liability for Fairmont. Fairmont applied to the court to rectify their directors’ resolutions to avoid the tax liability. Likewise, in Jean Coutu, a Quebec corporation, the Jean Coutu Group (PJC) made a series of transactions designed to be tax neutral, but were unsuccessful in avoiding tax consequences. After the audit, PJC sought to rectify the documents, arguing the intention of the parties to the transactions was to be tax neutral.

The Doctrine of Rectification Reviewed

In both cases, the court held that a general intention of tax neutrality is insufficient as a basis for rectifying the written documents of an agreement. Instead of looking at the motivation for entering into the agreement, a court must consider what the parties actually agreed to do. In Fairmont, the court stated: “It bears reiterating that rectification is limited solely to cases where a written agreement has incorrectly recorded the parties’ antecedent agreement. […] In short, rectification is unavailable where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.” In the case of Fairmont, the court held that Fairmont only had a wish to protect its subsidiaries from tax liability, not a plan to do so in concrete and ascertainable terms. Rectification was therefore not available.

Test

The court will grant rectification for two types of error:

(1) where both parties subscribe to a written agreement on the mistaken common understanding that it accurately reflects the terms of their antecedent agreement; and

(2) where there is a unilateral mistake, either in a unilateral act such as the creation of a trust, or where an instrument was created to record an agreement made between parties and one party argues it does not accurately do so.

In the first case, a mutual mistake, the court must be satisfied: “that there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ prior agreement.”  In the latter situation, the preconditions to rectify a unilateral mistake are: “the party resisting rectification knew or ought to have known about the mistake” and “permitting that party to take advantage of the mistake would amount to ‘fraud or the equivalent of fraud.’”

Thank you for reading. 

Suzana Popovic-Montag

Other articles you might enjoy:

The Doctrine of Rectification and Proof in Solemn Form

Rectification – When can a will be changed?

Will Rectified Where Residue Clause Inadvertently Left Out

07 Jun

Hull on Estates #470 – Rectification Revisited

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, David Smith and Nick Esterbauer discuss the equitable doctrine of rectification and situations in which Ontario courts may be willing to rectify wills and life insurance beneficiary designations.

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.

Click here for more information on Nick Esterbauer.

06 Aug

The Doctrine of Rectification and Proof in Solemn Form

Doreen So Estate & Trust, Estate Planning, Litigation, Wills Tags: , , , , , , , , 0 Comments

An interesting decision was recently released from the Brampton Superior Court of Justice which considered whether the Court’s rectification of a will in a prior proceeding precludes the Court from requiring that same will to be proven in solemn form on a subsequent motion.

The details of the initial rectification proceeding in McLaughlin v. McLaughlin, 2014 ONSC 3161, have been extensively covered by our blog here and here (bonus points to our dedicated readership if you recall the comments of our very own Jonathon Kappy in the Law Times on this subject).  Ultimately, Justice Lemon rectified the secondary will of Elizabeth Anne McLaughlin such that the revocation clause therein would not have the effect of nullifying the validity of the primary will that was executed on the same day, in addition to rectifying various other drafting errors.  A finding was made after a full hearing that neither the testatrix, nor the drafting solicitor, could have failed to detect the patent errors in the secondary will if they read the will.

Despite the Applicant’s success in the rectification proceeding, the issue of his sibling’s Notice of Objection to the probate of the primary will remained before Justice Price in McLaughlin v. McLaughlin, 2015 ONSC 4230, and he was left to consider the preliminary issue of whether Justice Lemon’s prior ruling precluded the Court from requiring both wills to be proven in solemn form.   Given that there were no issues with the testatrix’ testamentary capacity, the issue before Justice Price in respect of the validity of the secondary will was whether the testatrix understood and approved of its contents in light of the prior finding that she could not have read the secondary will on a balance of probabilities.

After a review of the jurisprudence on the doctrine of rectification in Robinson Estate v. Rondel, Justice Price concluded as follows,

“Rectification is concerned with correcting the drafting errors of the will, whereas the proving of a will in solemn form concerns the validity of the will.  These issues are substantively different, and I am therefore satisfied that I would not, in effect, be reversing Lemon J.’s decision as to rectification of the secondary will should I find that will to be invalid.”

While Justice Price found that the Court was not precluded from considering the validity of the secondary will subsequent to its rectification, Justice Price ultimately found that the secondary will was invalid on the basis of Justice Lemon’s finding that the testatrix did not read the will nor did she have knowledge and approval of its contents.

Doreen So

 

 

 

16 Jan

Rectification of Mistakes – Is what is written final?

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

Mistakes are a fact of life. Even the most careful person, who always makes sure to double check their work, may one day inadvertently make a mistake. If luck is on your side hopefully these mistakes do not have too large an impact, and can easily be corrected. But what happens when a mistake is made in the drafting of a will? Can these mistakes easily be corrected, or is the testator (and their intended beneficiaries) stuck with the will as written, mistakes and all?
 

There has long been a debate over whether the court has the power to add new words to a will in order to correct a mistake, or merely the power to delete mistakenly included words.  Indeed A.H. Oosterhoff in his seminal text "Oosterhoff on Wills and Succession", states that while a court of probate may strike out errors, it may not substitute new words.  But is this truly the case? Are the words as written in the will the only words that may be admitted to probate? Can no additions be made?
 

Recently in Lipson v. Lipson, the Ontario Superior Court of Justice gave some guidance in understanding under which circumstances the court can add or delete words to a will. In coming to his decision, Justice Pattillo states that after reviewing the jurisprudence on the matter, it has long been an established principle in Ontario that the court has the power to delete or add words to a will by necessary implication.In Lipson, Justice Pattillo formulates a test to determine under what circumstances the court can add or delete words to a will. Justice Pattillo states that this test is to apply not only in circumstances where words are omitted, but also in circumstances in which the incorrect words were inserted. Before the court can delete or insert words to correct an error in a will, the court must be satisfied that:
 

i. Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
ii. The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;
iii. The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
iv. The proposed correction of the mistake, by the deletion of words, the addition of words, or both, must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.
 

So long as the proposed addition or deletion meets all four elements of the test as contained in Lipson, the court should be willing to rectify the mistake and allow the true intentions of the testator to become reality. Whether the courts will openly embrace Lipson remains to be seen, but hopefully with this test we will now finally have some closure on the debate of when mistakes can be rectified in a will. Mistakes happen. Hopefully we now have a mechanism to correct them.
 

Ian Hull – Click here for more information on Ian Hull

09 Dec

RECTIFICATION OF WILLS

Hull & Hull LLP Litigation, Wills Tags: , , , , , 0 Comments

Yesterday, I introduced the matter of Estate of William Lipson (Pattillo, J., December 1, 2009, not yet reported).

There, multiple wills were executed. Unfortunately, the second will purported to revoke the first. In addition, both wills purported to deal with all assets, except for shares in a private corporation.

One of the issues addressed was whether the Court could rectify the wills by adding or deleting words. The Court reviewed numerous cases, and concluded that words could be added or deleted from a will to correct an error. Before doing so, the Court must be satisfied that:

i.                    Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;

 

ii.                  The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;

 

iii.                The testator’s intentions must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and

 

iv.                The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.

The Court rectified the will by deleting the revocation clause of the second will (so that the first will was not therefore revoked), and by altering the disposition clause of the second will so that it only dealt with shares that the deceased owned in a private corporation.

These alterations, the Court concluded, best gave effect to the intentions of the testator.

Thank you for reading.

Paul Trudelle

Paul E. Trudelle – Click here for more information on Paul Trudelle.

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