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Another Will Rectification

1. Introduction

I have written about the rectification of wills before and have pointed out that Ontario, along with most other provinces, has not enacted a provision that empowers a court to rectify a will in certain circumstances, both at the probate and the construction stages. Alberta and British Columbia do have such provisions and they resolve many of the uncertainties about the power to rectify wills. Other provinces ought to enact such provisions too.

Until they do, we must recognize and deal with the different rules that apply in the two different jurisdictions of probate and construction. That is apparent also in the most recent case on rectification, Hofman v Lougheed.[1] Unfortunately, the courts typically fail to understand and recognize the distinctions. They are outlined clearly in an excellent comment by the Honourable Maurice Cullity published in 2012.[2] In it he points out how the courts in Robinson v Robinson[3] failed to appreciate the distinctions. Robinson is usually quoted in subsequent revocation cases and therefore the problem continues. The following is a summary of the rules. For further detail I refer the reader to Cullity’s comment.[4]

The court sitting as a court of probate has the duty to determine whether the testator has expressed his testamentary intentions in writing in a way that complies with the testamentary formalities for wills. In the course of that investigation, it may be alleged that words have been inserted in the will by mistake and that they should be deleted to reflect the testator’s intention. To determine the testator’s intention, the court of probate may of course admit evidence of surrounding circumstances, but it may also admit direct evidence of the testator’s intention. And indeed, it may even admit hearsay evidence. If the court concludes that some words were inserted by mistake, it may delete them.[5] But it has no power to replace them with words that the testator may have intended. Having deleted the mistaken words, the court of probate then admits the will with the mistaken words deleted to probate. If the will is then uncertain in its meaning, a party may apply again to the court in its construction role for an interpretation of the probated will. When the court construes a will, it is limited in the evidence it may consider. It is entitled to (and in accordance with modern law) must consider extrinsic evidence surrounding the execution of the will (‘sitting in the testator’s armchair’ rule). But it may not consider direct evidence of the testator’s intention save in very limited circumstances, namely, (a) when a gift is made to a person who, as the testator knew, was already dead when the testator made her will); and (b) cases of equivocation (when there is not one but two or more subjects or objects to which the description of the will applies equally). However, a court of construction does have broader powers of rectification than a court of probate. Note however that although the power is called a power of rectification, as distinct from the court of probate, the court of construction does not actually change the will by, for example, deleting words or adding them. Instead, it interprets the will and says what it means by ‘reading out or reading in’ words. The broader powers of a court of construction are adumbrated in the Hofman case, to which I now turn.

2. Facts

The testator, Shirley Cunningham, died in 2008. She left a General Will and a Limited Will. She had three children, Tenny, Nancy, and Douglas. Tenny, her first child, was born when Shirley was 17 and before her marriage to Dick Cunningham. The wills contained a trust (the ‘Tenny Clark-Drost Trust’). Tenny would receive the income from the Trust for life and after her death the capital was to be divided into as many equal shares as there should be children of Tenny living on her death and one-half of the shares was to be distributed to each child at age 30 and the balance at age 40.

Tenny married John Hofman in 1970. She had her first child, Carrie-Lee, in 1975. Tenny and John were divorced in 1980. In 1980, while separated from John, Tenny had her second child, Kimberly, whose father is Steven Trudgeon. Carrie-Lee lived with her father John, while Kimberly lived with her mother Tenny and her stepfather, George Drost. Kimberly had a positive relationship with the testator. The two stepsisters had little connection during their childhood. Tenny died in 2021.

Nancy later gave birth to the testator’s’ granddaughter, Bailey Lougheed. Her parents were not then married but they married subsequently. Also later, Carrie-Lee gave birth to Darren Hofman. Carrie-Lee was unmarried to Darren’s father at the time, and they remain unmarried.

Again, later Nancy gave birth to Gillian Bun when Nancy was not married to Gillian’s father, and she did not marry him later.

Carrie-Lee (the Applicant) and Kimberly (the Respondent) sought the opinion, advice, and direction of the court on the question whether, under the wills, Kimberly is to be considered a child of Tenny. Carrie-Lee maintained that, because of the exclusion clause described below, Kimberly cannot be considered a child of Tenny and that she (Carrie-Lee) is the sole beneficiary of the property constituting the Drost Trust. Kimberly’s position is that she is entitled to have the will rectified because the lawyer failed to carry out Shirley’s instructions.

The problem arose because both wills contained an exclusion clause that defined ‘children’ to exclude persons born outside marriage. It was a standard clause that Shirley’s long-time lawyer typically inserted in wills he drafted.

The lawyer testified that Shirley had told him that she had three children and seven grandchildren, which included Tenny’s two daughters, Carrie-Lee and Kimberly. Shirley’s instructions, according to the lawyer’s notes that he produced in evidence, were that Tenny’s two daughters were to receive the Trust’s capital in equal shares on Tenny’s death. He testified further that he was never told that some of Shirley’s descendants were born outside marriage and that, had he been informed of this, he would not have inserted the exclusion clause in the wills. The court accepted his evidence that it is his standard practice to review a will with his client before it is signed.

It is regrettable that the reasons do not make it clear whether the proceedings were raised in probate or in construction. All they say is that the lawyer prepared Shirley’s estate’s probate application (para 28).

3. Analysis and Judgment

Justice Valente discussed the applicable legal principles. For that purpose, he considered the Robinson case in some detail. In particular, he reproduced the three circumstances in which, according to Justice Belobaba (para 24 of his reasons), a court will rectify a will, namely:

(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.

However, in para 25 of his reasons Justice Belobaba referred to this power as ‘The equitable power of rectification’. That statement is not incorrect when a court, in the exercise of its interpretative role exercises its equitable jurisdiction. Moreover, the court can then consider the evidence of the drafting solicitor who testifies to the error. But a court exercising its probate jurisdiction has much broader powers to delete errors and it can hear all necessary evidence to determine that an error has occurred. One of the applications in Robinson was for an order setting aside the grant of probate and rectifying the disputed will. That application fell within the probate jurisdiction of the court, but the court at first instance seemed to have failed to appreciate that and proceeded as though the matter fell solely with the court’s equitable jurisdiction, and the Court of Appeal agreed.

The application in the Hofman case did not seek a probate order, but an interpretation of the wills, so the equitable jurisdiction of the court applied. Accordingly, although the court could not consider direct evidence of the testator’s intention, it could consider the indirect evidence of her intentions by reference to her instructions to the lawyer. Justice Valente referred to three other cases in which the court admitted the testator’s instructions to the drafting solicitor to determine the testator’s intention and to correct an unintended error by the drafting solicitor, namely, Darradick v McKeand Estate,[6] Bank of Nova Scotia Company v Haugrad,[7] and Gorgi v Ihnatowich.[8] His Honour therefore admitted such indirect evidence. He took the view that the evidence of the surrounding circumstances raised doubt about the otherwise clear language of the wills. In the circumstances, he distinguished the Robinson case. He concluded that the lawyer inserted the exclusion clause in accordance with his usual practice and that it was contrary to Shirley’s intentions, for it was obvious from the facts that Shirley intended to benefit Carrie-Lee and Kimberly equally. His Honour applied the Gorgi case and concluded that the principles of rectification set out above had been satisfied. Consequently, he ordered that the exclusion clause be deleted from both wills.

[1] 2023 ONSC 3437.

[2] Cullity, ‘Rectification of Wills – A Comment on the Robinson case’ (2012), 31 ETPJ 127.

[3] 2010 ONSC 3484 (Belobaba J), affirmed 2011 ONCA 493 (Jurianz JA).

[4] See also Oosterhoff on Wills 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2019), §7.2, 7.3, 7.5, 13.6, and 13.7.

[5] The power to delete words was traditionally circumscribed by the conclusive presumption that if the will had been read by or to the testator, she would be deemed to have knowledge and given approval of its contents (see Guardhouse v Blackburn (1866) LR 1 P&D 109 (Prob Ct) at 116-117). But this presumption has been much weakened in later cases.

[6] 2012 ONSC 5622.

[7] 2016 ONSC 8150.

[8] 2023 ONSC 1803.


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