1. Introduction
Some Canadian provinces now grant the court power to rectify a will in certain defined circumstances.[1] Ontario has not enacted such a provision. But even under the common law courts can rectify a will. In the past courts took a very strict approach when asked to rectify a will because of drafting omissions and errors. They insisted on clear certainty about what the testator intended,[2] and often rejected extrinsic evidence that explained the omission or error.[3] However, later cases have taken a more lenient approach. They require only a ‘reasonable inference if not necessary implication’ and a ‘reasonable certainty’.[4] And they readily admit extrinsic evidence, such as the notes of the drafting solicitor.[5] These issues arose also in Gorgi v Ihnatowych.[6]
2. Facts
The testator, John Ihnatowych, instructed his solicitor to prepare his will and gave the solicitor extensive oral and written instructions. The solicitor prepared the Will and reviewed it with John, after which John signed it in 2009. He died in 2020. John appointed his children, the applicant, Ulana Gorgi, and the respondent, Markian Ihnatowych his executors. The Will directed that 10 percent of the estate be given to John’s grandchildren (the ‘Grandchildren Clause’), and that the residue be paid to John’s ‘issue living at his death’ (the ‘Residue Clause’).
When Ulana and Markian applied for probate, the respondent, Alexander de Berner, filed a Notice of Objection, also on behalf of his two children. Alexander claimed that he is John’s biological son and thus falls within the wording of the Residue Clause, and that his children are John’s biological grandchildren and thus fall within the wording of the Grandchildren Clause.
Alexander deposed that from 1960 to 1965 John had an intimate relationship with his mother, Erika von Berner and that that relationship ended shortly before Alexander was born. During the first thirty years of his life, Erika told Alexander that his father was Erika’s husband, George de Berner, and only informed him in 1995 that John was his father. Alexander deposed that he had no contact with John until 2006. He had asked John to attend his wedding. John refused but sent a $5,000 wedding gift. In 2008 John sent him another gift of $1,000 on the birth of Alexander’s first child. Alexander further deposed that he spoke to John by telephone for the first time in 2008 and continued to talk with him on occasion thereafter but did not meet John in person until 2014.
Ulana claims that she did not know of Alexander until after John’s death. Markian renounced his appointment as executor. Ulana then brought this application to rectify the Will so as to exclude Alexander and his children in the following respects, in which the words to be deleted have a line drawn through them and the words to be inserted are underlined:
Grandchildren Clause:
Ten percent (10%) of the residue of my estate is to be distributed between my grandchildren among the children of Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death, in equal shares per stirpes, and administered as set out below.
Residue Clause:
The balance of the residue of my estate is to be paid and transferred to my issue Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death in equal shares per stirpes.
In the alternative Ulana sought an order that the proper interpretation of both clauses is consistent with her proposed rectification.
The solicitor deposed that John did not mention Alexander when he gave him instructions for the Will but told him at their meetings and in his handwritten instructions that he had two children, Ulana and Markian.
3. Analysis and Judgment
Justice Sanfilippo noted first that the application did not ask for a determination of Alexander’s parentage and thus he did decide that matter.
The parties relied on, and the court applied the legal principles that apply to rectifying a will as adumbrated in Robinson Estate v Robinson.[7] That is not inappropriate, although that case has been criticized for the failure of the courts to recognize the distinction between the role of the court sitting as a court of probate and sitting as a court of construction.[8]
At first instance in Robinson, Justice Belobaba identified those principles as follows:[9]
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 error or clerical error;
(2) Where the testator’s intentions have been misunderstood; or
(3) Where the testator’s instructions have not been carried out.
And Justice Belobaba went on to note that applications for rectification are typically supported by an affidavit of the drafting solicitor that documents the testator’s instructions and explains how the solicitor or his staff misunderstood or failed to implement the testator’s intention.[10] Further, as the Court of Appeal noted, extrinsic evidence of the testator’s circumstances at the time the will was made is normally admissible, but extrinsic evidence of the testator’s intention is not.[11]
Justice Sanfilippo found first that there was no ambiguity on the face of the Will and noted that neither party challenged the validity of the Will. Thus, the issue was whether the solicitor carried out the testator’s instructions.
The solicitor deposed that according to John’s oral and written instructions (including a draft will and handwritten notes) his estate was to be distributed equally between his two children, Ulana and Markian, subject to a 10 percent gift to be invested ‘for my blood grandchildren’. He also deposed that John wanted to appoint Ulana as his attorney for property and personal care and Markian as her substitute. Thus the solicitor understood that John wanted to leave his whole estate to Ulana and Markian and their children. The solicitor admitted that while he referred to Ulana and Markian by name when he appointed them as his executors but spoke of them as ‘issue’ in the Residue Clause, and further that he did not specify in the Grandchildren Clause that the grandchildren were the children of Ulana and Markian. The solicitor also deposed that John did not mention Alexander or his children but admitted that the Will as drafted did not accurately reflect John’s intentions and instructions.
His Honour accepted the solicitor’s evidence, which was unchallenged, and which was supported by John’s notes. Thus John’s notes left no reason for doubt about the solicitor’s deposition that only Ulana and Markian and their children were to benefit from John’s estate. His Honour concluded that the Will contained an unintended error in that John’s instructions were not carried out in the Grandchildren Clause and the Residue Clause. Further, his Honour accepted that the rectification as proposed by Ulana would carry out John’s intention and thus he granted the application. This meant that it was unnecessary to make an order interpreting the Will.
The order does not minify[12] Alexander’s situation. It means simply that the testator’s intention, as determined from the extrinsic evidence and the solicitor’s testimony, was that only Ulana and Markian and their children should inherit his estate, and that the court should effectuate it.
—
[1] See, e.g., Wills and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[2] See, e.g., Re Craig Estate (1978), 149 DLR 3d 483, 2 ETR257 (Ont CA).
[3] See, e.g., Re MacDonnell, 1982 CarswellOnt 606, 133 DLR 3d 279 (CA).
[4] See, e.g., Re Freeman Estate, 1975 CarswellNS 464, 58 DLR 3d 541 (NSSC).
[5] See, e.g., Re Hoedl Estate, 2912 ONSC 6857, 85 ETR 3d 296; Re Ferguson Estate, (1980) 6 Sask R 316 (QB). For similar modern cases see Re Murray Estate, 2007 BCSC 1035; Lipson v Lipson, 2009 CarswellOn 7474 (SC); Bank of Nova Scotia Trust Co v Armstrong, 2012 SKQB 342; Chabros v Anderson, 2012 ABQB 517; 2012 ONSC 5622, 82 ETR 3d 324; Re Heaton Estate, 2012 SKQB 493, 83 ETR 3d 151.
[6] 2023 ONSC 1803.
[7] 2010 ONSC 3484, affirmed 2011 ONCA 493.
[8] See, e.g., Maurice Cullity, ‘Rectification of Wills – A Comment on the Robinson Case’ (2012), 31 ETPJ 127; Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §7.2 at pp 266-67.
[9] 2010 ONSC 3484, para 24.
[10] Ibid., para 25.
[11] 2011 ONCA 493.
[12] Yes, dear reader, this is indeed a word. It means to belittle, degrade, or to represent something as smaller than it really is. Thus the word is appropriate here. Most writers would typically use the word minimize instead, but its proper meaning is to keep to a minimum. See Garner’s Modern English Usage, 4th ed by Bryan A Garner (New York: Oxford University Press, 2016), sub voce ‘minimize’ A. Meanings, and B. ‘minify’. Garner acknowledges that HW Fowler and Eric Partridge considered minify to be a needless variant of minimize, but Theodore Bernstein liked it, and Garner clearly does too.
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Written by: Albert Oosterhoff
Posted on: May 24, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
Some Canadian provinces now grant the court power to rectify a will in certain defined circumstances.[1] Ontario has not enacted such a provision. But even under the common law courts can rectify a will. In the past courts took a very strict approach when asked to rectify a will because of drafting omissions and errors. They insisted on clear certainty about what the testator intended,[2] and often rejected extrinsic evidence that explained the omission or error.[3] However, later cases have taken a more lenient approach. They require only a ‘reasonable inference if not necessary implication’ and a ‘reasonable certainty’.[4] And they readily admit extrinsic evidence, such as the notes of the drafting solicitor.[5] These issues arose also in Gorgi v Ihnatowych.[6]
2. Facts
The testator, John Ihnatowych, instructed his solicitor to prepare his will and gave the solicitor extensive oral and written instructions. The solicitor prepared the Will and reviewed it with John, after which John signed it in 2009. He died in 2020. John appointed his children, the applicant, Ulana Gorgi, and the respondent, Markian Ihnatowych his executors. The Will directed that 10 percent of the estate be given to John’s grandchildren (the ‘Grandchildren Clause’), and that the residue be paid to John’s ‘issue living at his death’ (the ‘Residue Clause’).
When Ulana and Markian applied for probate, the respondent, Alexander de Berner, filed a Notice of Objection, also on behalf of his two children. Alexander claimed that he is John’s biological son and thus falls within the wording of the Residue Clause, and that his children are John’s biological grandchildren and thus fall within the wording of the Grandchildren Clause.
Alexander deposed that from 1960 to 1965 John had an intimate relationship with his mother, Erika von Berner and that that relationship ended shortly before Alexander was born. During the first thirty years of his life, Erika told Alexander that his father was Erika’s husband, George de Berner, and only informed him in 1995 that John was his father. Alexander deposed that he had no contact with John until 2006. He had asked John to attend his wedding. John refused but sent a $5,000 wedding gift. In 2008 John sent him another gift of $1,000 on the birth of Alexander’s first child. Alexander further deposed that he spoke to John by telephone for the first time in 2008 and continued to talk with him on occasion thereafter but did not meet John in person until 2014.
Ulana claims that she did not know of Alexander until after John’s death. Markian renounced his appointment as executor. Ulana then brought this application to rectify the Will so as to exclude Alexander and his children in the following respects, in which the words to be deleted have a line drawn through them and the words to be inserted are underlined:
Grandchildren Clause:
Ten percent (10%) of the residue of my estate is to be distributed between my grandchildren among the children of Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death, in equal shares per stirpes, and administered as set out below.
Residue Clause:
The balance of the residue of my estate is to be paid and transferred to my issue Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death in equal shares per stirpes.
In the alternative Ulana sought an order that the proper interpretation of both clauses is consistent with her proposed rectification.
The solicitor deposed that John did not mention Alexander when he gave him instructions for the Will but told him at their meetings and in his handwritten instructions that he had two children, Ulana and Markian.
3. Analysis and Judgment
Justice Sanfilippo noted first that the application did not ask for a determination of Alexander’s parentage and thus he did decide that matter.
The parties relied on, and the court applied the legal principles that apply to rectifying a will as adumbrated in Robinson Estate v Robinson.[7] That is not inappropriate, although that case has been criticized for the failure of the courts to recognize the distinction between the role of the court sitting as a court of probate and sitting as a court of construction.[8]
At first instance in Robinson, Justice Belobaba identified those principles as follows:[9]
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 error or clerical error;
(2) Where the testator’s intentions have been misunderstood; or
(3) Where the testator’s instructions have not been carried out.
And Justice Belobaba went on to note that applications for rectification are typically supported by an affidavit of the drafting solicitor that documents the testator’s instructions and explains how the solicitor or his staff misunderstood or failed to implement the testator’s intention.[10] Further, as the Court of Appeal noted, extrinsic evidence of the testator’s circumstances at the time the will was made is normally admissible, but extrinsic evidence of the testator’s intention is not.[11]
Justice Sanfilippo found first that there was no ambiguity on the face of the Will and noted that neither party challenged the validity of the Will. Thus, the issue was whether the solicitor carried out the testator’s instructions.
The solicitor deposed that according to John’s oral and written instructions (including a draft will and handwritten notes) his estate was to be distributed equally between his two children, Ulana and Markian, subject to a 10 percent gift to be invested ‘for my blood grandchildren’. He also deposed that John wanted to appoint Ulana as his attorney for property and personal care and Markian as her substitute. Thus the solicitor understood that John wanted to leave his whole estate to Ulana and Markian and their children. The solicitor admitted that while he referred to Ulana and Markian by name when he appointed them as his executors but spoke of them as ‘issue’ in the Residue Clause, and further that he did not specify in the Grandchildren Clause that the grandchildren were the children of Ulana and Markian. The solicitor also deposed that John did not mention Alexander or his children but admitted that the Will as drafted did not accurately reflect John’s intentions and instructions.
His Honour accepted the solicitor’s evidence, which was unchallenged, and which was supported by John’s notes. Thus John’s notes left no reason for doubt about the solicitor’s deposition that only Ulana and Markian and their children were to benefit from John’s estate. His Honour concluded that the Will contained an unintended error in that John’s instructions were not carried out in the Grandchildren Clause and the Residue Clause. Further, his Honour accepted that the rectification as proposed by Ulana would carry out John’s intention and thus he granted the application. This meant that it was unnecessary to make an order interpreting the Will.
The order does not minify[12] Alexander’s situation. It means simply that the testator’s intention, as determined from the extrinsic evidence and the solicitor’s testimony, was that only Ulana and Markian and their children should inherit his estate, and that the court should effectuate it.
—
[1] See, e.g., Wills and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[2] See, e.g., Re Craig Estate (1978), 149 DLR 3d 483, 2 ETR257 (Ont CA).
[3] See, e.g., Re MacDonnell, 1982 CarswellOnt 606, 133 DLR 3d 279 (CA).
[4] See, e.g., Re Freeman Estate, 1975 CarswellNS 464, 58 DLR 3d 541 (NSSC).
[5] See, e.g., Re Hoedl Estate, 2912 ONSC 6857, 85 ETR 3d 296; Re Ferguson Estate, (1980) 6 Sask R 316 (QB). For similar modern cases see Re Murray Estate, 2007 BCSC 1035; Lipson v Lipson, 2009 CarswellOn 7474 (SC); Bank of Nova Scotia Trust Co v Armstrong, 2012 SKQB 342; Chabros v Anderson, 2012 ABQB 517; 2012 ONSC 5622, 82 ETR 3d 324; Re Heaton Estate, 2012 SKQB 493, 83 ETR 3d 151.
[6] 2023 ONSC 1803.
[7] 2010 ONSC 3484, affirmed 2011 ONCA 493.
[8] See, e.g., Maurice Cullity, ‘Rectification of Wills – A Comment on the Robinson Case’ (2012), 31 ETPJ 127; Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §7.2 at pp 266-67.
[9] 2010 ONSC 3484, para 24.
[10] Ibid., para 25.
[11] 2011 ONCA 493.
[12] Yes, dear reader, this is indeed a word. It means to belittle, degrade, or to represent something as smaller than it really is. Thus the word is appropriate here. Most writers would typically use the word minimize instead, but its proper meaning is to keep to a minimum. See Garner’s Modern English Usage, 4th ed by Bryan A Garner (New York: Oxford University Press, 2016), sub voce ‘minimize’ A. Meanings, and B. ‘minify’. Garner acknowledges that HW Fowler and Eric Partridge considered minify to be a needless variant of minimize, but Theodore Bernstein liked it, and Garner clearly does too.
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