Rectification of Will Refused
Re Ali Estate 2011 BCSC 537, involves an application to rectify a will prior to its admission into probate.
The deceased died owning all the shares of a company operated with his brother.
The testator’s estate was valued at $9 million, including the company, which was worth approximately 4.5 million.
The testator had significant monies owing to him from the company for shareholders loans and a promissory note.
The testator left 70% of his interest in the company to his brother.
Two children of the testator, in related litigation, commenced a wills variation action.
The brother, a co-executor, applied for rectification of the will by adding the words ” including my shareholders loans and promissory notes owing to me” in defining the testator’s interest in the company.
The court dismissed the petitioner’s application to add the words.
The court discussed the interesting historical distinction between the court sitting as a court of probate, and the court sitting as a court of construction.
These two concurrent jurisdictions have historically been exercised in separate proceedings.
When ruling upon the validity of a will, the court sits as a court of probate, and when interpreting a will, it sits as a court of construction.
Different rules apply for each court.
For example, except in very restricted circumstances, the court is not permitted to review direct evidence of the testator’s intentions on a construction application.
The court in exercising its probate jurisdiction, does have a limited power to rectify the mistake in a will where the language of the will fails to express the testator’s actual intentions.
A will is only valid to the extent a testator knew and approved of its contents.
It is well-established on the authorities that before will is admitted to probate, the court may, in the exercise of its probate jurisdiction, delete words from a will that have been included without the testator’s requisite knowledge and approval.
The court concluded that the weight of authority affirms the principle that when the court sits as a court of probate, it has no jurisdiction to add words to a will.
The court stated ” that the words that the petitioner seeks to add to this will are an attempt by him, in the guise of a rectification application, to add new language to the will to accord with, or to achieve, the interpretation desired by the petitioner.”
The court then to the somewhat unusual step of ordering the petitioner to set the hearing of the construction application with the affidavits containing only that evidence which is properly admissible on the construction application. The matter was to be set before the same judge.