Court Adds Bequest to Will Omitted By Drafting Solicitor

Drafting Solicitor

Daradick v McKeand Estate 82 ETR (3d) 324, the Ontario Supreme Court made a very practical decision to allow the rectification of the will where there had been obvious drafting solicitor negligence in omitting a specific and substantial bequest.

The case reviews both the law of British Columbia and Ontario, and perhaps leads to the conclusion that the Ontario law is more flexible than that of British Columbia in allowing rectification of wills.

 

The testator made wills in 1992 and 2005, and left the matrimonial home in both wills to her daughter, provided that the testator’s husband was not alive at the time of her death.

The testator’s husband died in 2005.

In 2010 the testator’s solicitor took instructions from her regarding a new will, and according to the drafting solicitor, the testator instructed him that the matrimonial home was to be gifted to the daughter, and he made note of this on the reverse side of his sheet of notes.

According to the drafting solicitor, his secretary did not see the notes regarding the bequest of the matrimonial home to the daughter on the other side of the will, and she prepared the 2010 will without reference to that bequest.

 

After the testator’s death, the daughter brought a court application to rectify the 2010 will.

 

The court allowed the will to be rectified by adding that the matrimonial home would be bequeathed to the daughter.

 

Because the respondents led no rebuttal evidence, it was surmised that the facts as stated in the affidavits of the daughter and the solicitor were not challenged.

 

In the solicitors affidavit, he acknowledged that he made an error and that he did not include the matrimonial home in the 2010 will, as he had been instructed to do.

 

The court determined that the solicitors error could and should be corrected. If the 2010 will were not rectified, then the only other recourse of action would be a lawsuit against the solicitor or the estate, or both, which would be very costly.

33 The respondents cited a number of court cases from the Provinces of Alberta and British Columbia, which state that the courts have very limited powers in rectifying wills. They also cited Feeney’s Canadian Law of Wills, 4th edition.

 

34 At 3.26 Feeney wrote the following:

 

The approach in Re Rapp was rejected by McFayden J. of the Alberta Court of Queen’s Bench, and more recently by Melvin J. and Burnyeat J. of the Supreme Court of British Columbia. Justice Burnyeat suggested that the Rapp decision overlooked the contrary decision of the Court of Appeal in Clark v. Nash, which should be followed. It seems that the traditional restrictive view is still law.

 

35 However the author does state at 3.28 the following:

 

…Yet, when the mistake is that of a draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did n and him and him ot approve of those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

 

36 The Court of Appeal in British Columbia stated in Clark v. Nash, [1987] B.C.J. No. 304(B.C. C.A.) the following:

 

… [N]o case supports the proposition that a Will that is a complete Will so far as form and content are concerned can be rectified by substituting as residuary beneficiaries the names of ten persons who are legatees named in that Will for two other persons.

 

37 As I stated earlier, the respondents did not cite any cases from the Province of Ontario.

 

38 In the Robinson Estate v. Robinson, [2010] O.J. No. 2771(Ont. S.C.J.), Mr Justice Belobaba wrote the following at paragraphs 24, 25, 26 and 27:

 

24. Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors 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 have been misunderstood; or

 

(3) where the testator’s instructions have not been carried out.

 

25. The equitable power of rectification, in the estates context, is aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will. This is a key point. Most will-rectification cases are prompted by one of the above scenarios and are typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error.

 

26. Courts are more comfortable admitting and considering extrinsic evidence of testator intention when it comes from the solicitor who drafted the will, made the error and can swear directly about the testator’s instructions. They are much less comfortable relying on affidavits (often self-serving) from putative beneficiaries who purport to know what the testator truly intended.

 

27. Here is how Feeney’s puts it:

 

[T]he application for rectification is usually based on the ground that, by some slip of the draftsman’s pen or by clerical error, the wrong words were inserted in the will; the mistake may be latent in the letters of instruction or other documents. Yet, when the mistake is that of the draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did not approve those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

 

39 The Ontario Court of Appeal upheld the decision of Justice Belobaba. See Robinson Estate v. Robinson, [2011] O.J. No. 3084(Ont. C.A.).

 

40 Mr. Justice Pattillo, in Lipson v. Lipson, [2009] O.J. No. 5124(Ont. S.C.J.), stated the following at paragraphs 32 and 39-42:

 

32It has been long established in Ontario that the court has the power to delete or add words to a will by necessary implication.

 

. . .

 

39In Mistakes In Wills In Canada, by Stan Sokol (Carswell, 1995), at p. 95, the learned author, referring to the above noted cases, summarizes the criteria which must be established before a court can add words to a will as follows:

 

1. upon reading of the will, it must be apparent on the face of the instrument that a word or words have been omitted from the will,

 

2. from a reading of the will as a whole, the intention of the testator must be so strongly expressed that the language of the will could not support a reasonably contrary intention or interpretation, and

 

3. from a reading of the whole will and in light of surrounding circumstances, the court must be able to determine, with sufficient precision, what the omitted words were which are required to give effect to the testator’s intention.

 

40In Myhill Estate v. Office of the Children’s Lawyer(2001), 39 E.T.R. (2d) 90 (Ont. S.C.J.), Haley J., in considering whether certain words should be added to a will, referred to and applied the three criteria set forth in Mistakes in Wills in Canada, supra.

 

41Surrounding circumstances include circumstances surrounding the making of the will; the testator’s property at the time of the will; the testator’s use of property; the testator’s relationship to named and potential beneficiaries; and prior wills. See: Harmer Estate, supra, at para. 30 and 31; Mistakes in Wills in Canada, supra, pp. 211-214.

 

42In my view the above principles concerning when a court can delete or add words to a will apply not only in circumstances where a word or words are omitted but also where an incorrect word or words are contained therein. In either case, before a 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.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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