1. Introduction
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,[1] and often rejected extrinsic evidence that explained the omission or error.[2] However, later cases have taken a more lenient approach. They require only a ‘reasonable inference if not necessary implication’ and a ‘reasonable certainty’.[3] Consequently, it is now fairly common for an Ontario court to grant an order rectifying a will for a number of reasons, including a failure to carry out the testator’s instructions.[4] The courts usually refer to and rely on the following statement of Justice Belobaba in Robinson Estate v Robinson.[5]
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.
English courts have not had to rely on the common law since Parliament enacted the Administration of Justice Act 1982,[6] section 20(1) of which provides:
If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence –
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
Alberta and British Columbia have enacted similar legislation.[7] It truly beggars’ belief that Ontario has not engaged in a full revision of the Succession Law Reform Act,[8] and for that matter of not enacting the Uniform Trustee Act, 2012.[9]
A recent English case, Angelova v Kershaw,[10] a decision of Master Clark, addresses the issue and applies the English Act mentioned above.
2. Facts
The testator died in December 2020, having made his Will some six months earlier. Gorvins LLP, a firm of solicitors, drafted the will. It was complex and included a discretionary trust (‘the BCT trust’). Clause 15.11 of the Will named several beneficiaries of this trust. Subclause a. named ‘My said wife Nina Angelova provided that we were married at the date of my death’.
Nina was the claimant, and she sought an order that subclause a. be rectified to read, ‘Nina Angelova, whether or not we are married at the date of my death’. The Gorvins Will file was in evidence at the initial hearing but there was no evidence from the solicitor who drafted the final version of the will, Christine Thornley. The Master granted an adjournment to permit counsel to obtain evidence from Ms. Thornley. In her witness statement Ms. Thornley stated that she had no recollection of the matter and relied entirely on the Gorvins’ Will file. In April 1920 she took over from the previous solicitor at the firm who had been dealing with the Will and who had become ill. Thereafter she had several communications with the testator by telephone and email. These included a lengthy telephone conversation on April 22, 2022. Then, based on those communications, she sent him a revised draft will, a draft Letter of Wishes (‘LoW’) regarding the discretionary trust, and a document explaining the Will. She had removed the condition that Nina be married to the testator from the Will and the LoW. Later, the testator asked Ms. Thornley in an email whether it mattered if he were married to Nina, but she was not a UK national. It seems that he was concerned about the effect of domicile on the spouse exemption for inheritance tax. However later in May he sent Ms. Thornley a revised plan for beneficiaries under the discretionary trust. In it he named three beneficiaries, including Nina, with the notation for each, ‘As if married’. Ms. Thornley then prepared revised drafts intended as the final versions. However, she changed the gift to Nina in clause 15.1.a. to contain the words, ‘provided that we were married at the date of my death’. In contrast, the revised LoW stated, ‘Regardless as to whether or not we are married’. The final draft of the will clearly did not reflect the testator’s instructions, and Ms. Thornley admitted as much in her witness statement, as did Gorvins. The testator signed the revised version of the will.
3. Analysis and Judgment
The Master reviewed the law on will rectification by quoting section 20(1) of the statute, reproduced above. On the question of the nature of a clerical error, the Master referred to Bell v Georgiou[11] in which Blackburne J stated at para 8:
The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.
In Marley v Rawlings,[12] Lord Neuberger described this as, ‘The best judicial summary of the effect of the cases so far decided on section 2(1)(a)’.
The Master dismissed the arguments of the defendant executors, holding: (1) that the testator had not read the Will with care and attention to the details; (2) he must have assumed that Ms. Thornley had given effect to his instructions; (3) while his intentions changed in a number of respects, they did not change after his telephone conversation with Ms. Thornley on 22 April 2020; (4) it cannot be inferred that the testator would have disregarded the clear inconsistency between the Will and the LoW had he noticed it; and (5) the fact that he had the draft Will for some time before he executed it is not proof that he noticed the fact that the Will failed to reflect his instructions.
Accordingly, the Master allowed the application and made an order rectifying the will in the terms requested by Nina.
—
[1] See, e.g., Re Craig Estate (1978), 149 DLR 3d 483, 2 ETR257 (Ont CA).
[2] See, e.g., Re MacDonnell, 1982 CarswellOnt 606, 133 DLR 3d 279 (CA).
[3] See, e.g., Re Freeman Estate, 1975 CarswellNS 464, 58 DLR 3d 541 (NSSC).
[4] See, e.g., Daradick v McKeand Estate, 2012 ONSC 5622; Robinson Estate v Robinson,; Bank of Nova Scotia Trust Company v Haugrad, 2016 ONSC 8150 Kurt v Kurt and Sullivan, 2023 ONSC 6599; Gorgi v Ihnatowych, 2023 ONSC 1803, affirmed sub nom Ihnatowych Estate v Ihnatowych, 2024 ONCA 142.
[5] 2010 ONSC 3484, para 24 affirmed 2011 ONCA 493.
[6] 1982 (UK), c 53.
[7] Will and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[8] RSO 1990, c S.20.
[9]https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Trustee-Act_1.pdf. Both New Brunswick and Alberta have enacted this Act: Trustees Act, SNB 2015, c 21; Trustee Act, SA 2022, c T-8.1.
[10] [2024] EWHC 1830 (Ch).
[11] [2002 EWHC 1080 (Ch).
[12] [2014] UKSC 2, para 71.
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Written by: Albert Oosterhoff
Posted on: November 1, 2024
Categories: Commentary, Estate Litigation, WEL Newsletter, Wills
1. Introduction
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,[1] and often rejected extrinsic evidence that explained the omission or error.[2] However, later cases have taken a more lenient approach. They require only a ‘reasonable inference if not necessary implication’ and a ‘reasonable certainty’.[3] Consequently, it is now fairly common for an Ontario court to grant an order rectifying a will for a number of reasons, including a failure to carry out the testator’s instructions.[4] The courts usually refer to and rely on the following statement of Justice Belobaba in Robinson Estate v Robinson.[5]
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.
English courts have not had to rely on the common law since Parliament enacted the Administration of Justice Act 1982,[6] section 20(1) of which provides:
If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence –
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
Alberta and British Columbia have enacted similar legislation.[7] It truly beggars’ belief that Ontario has not engaged in a full revision of the Succession Law Reform Act,[8] and for that matter of not enacting the Uniform Trustee Act, 2012.[9]
A recent English case, Angelova v Kershaw,[10] a decision of Master Clark, addresses the issue and applies the English Act mentioned above.
2. Facts
The testator died in December 2020, having made his Will some six months earlier. Gorvins LLP, a firm of solicitors, drafted the will. It was complex and included a discretionary trust (‘the BCT trust’). Clause 15.11 of the Will named several beneficiaries of this trust. Subclause a. named ‘My said wife Nina Angelova provided that we were married at the date of my death’.
Nina was the claimant, and she sought an order that subclause a. be rectified to read, ‘Nina Angelova, whether or not we are married at the date of my death’. The Gorvins Will file was in evidence at the initial hearing but there was no evidence from the solicitor who drafted the final version of the will, Christine Thornley. The Master granted an adjournment to permit counsel to obtain evidence from Ms. Thornley. In her witness statement Ms. Thornley stated that she had no recollection of the matter and relied entirely on the Gorvins’ Will file. In April 1920 she took over from the previous solicitor at the firm who had been dealing with the Will and who had become ill. Thereafter she had several communications with the testator by telephone and email. These included a lengthy telephone conversation on April 22, 2022. Then, based on those communications, she sent him a revised draft will, a draft Letter of Wishes (‘LoW’) regarding the discretionary trust, and a document explaining the Will. She had removed the condition that Nina be married to the testator from the Will and the LoW. Later, the testator asked Ms. Thornley in an email whether it mattered if he were married to Nina, but she was not a UK national. It seems that he was concerned about the effect of domicile on the spouse exemption for inheritance tax. However later in May he sent Ms. Thornley a revised plan for beneficiaries under the discretionary trust. In it he named three beneficiaries, including Nina, with the notation for each, ‘As if married’. Ms. Thornley then prepared revised drafts intended as the final versions. However, she changed the gift to Nina in clause 15.1.a. to contain the words, ‘provided that we were married at the date of my death’. In contrast, the revised LoW stated, ‘Regardless as to whether or not we are married’. The final draft of the will clearly did not reflect the testator’s instructions, and Ms. Thornley admitted as much in her witness statement, as did Gorvins. The testator signed the revised version of the will.
3. Analysis and Judgment
The Master reviewed the law on will rectification by quoting section 20(1) of the statute, reproduced above. On the question of the nature of a clerical error, the Master referred to Bell v Georgiou[11] in which Blackburne J stated at para 8:
The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.
In Marley v Rawlings,[12] Lord Neuberger described this as, ‘The best judicial summary of the effect of the cases so far decided on section 2(1)(a)’.
The Master dismissed the arguments of the defendant executors, holding: (1) that the testator had not read the Will with care and attention to the details; (2) he must have assumed that Ms. Thornley had given effect to his instructions; (3) while his intentions changed in a number of respects, they did not change after his telephone conversation with Ms. Thornley on 22 April 2020; (4) it cannot be inferred that the testator would have disregarded the clear inconsistency between the Will and the LoW had he noticed it; and (5) the fact that he had the draft Will for some time before he executed it is not proof that he noticed the fact that the Will failed to reflect his instructions.
Accordingly, the Master allowed the application and made an order rectifying the will in the terms requested by Nina.
—
[1] See, e.g., Re Craig Estate (1978), 149 DLR 3d 483, 2 ETR257 (Ont CA).
[2] See, e.g., Re MacDonnell, 1982 CarswellOnt 606, 133 DLR 3d 279 (CA).
[3] See, e.g., Re Freeman Estate, 1975 CarswellNS 464, 58 DLR 3d 541 (NSSC).
[4] See, e.g., Daradick v McKeand Estate, 2012 ONSC 5622; Robinson Estate v Robinson,; Bank of Nova Scotia Trust Company v Haugrad, 2016 ONSC 8150 Kurt v Kurt and Sullivan, 2023 ONSC 6599; Gorgi v Ihnatowych, 2023 ONSC 1803, affirmed sub nom Ihnatowych Estate v Ihnatowych, 2024 ONCA 142.
[5] 2010 ONSC 3484, para 24 affirmed 2011 ONCA 493.
[6] 1982 (UK), c 53.
[7] Will and Succession Act, SA 2010, c W-12.2, s 39; Wills, Estates and Succession Act, SBC 2009, c 13, s 59.
[8] RSO 1990, c S.20.
[9]https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Trustee-Act_1.pdf. Both New Brunswick and Alberta have enacted this Act: Trustees Act, SNB 2015, c 21; Trustee Act, SA 2022, c T-8.1.
[10] [2024] EWHC 1830 (Ch).
[11] [2002 EWHC 1080 (Ch).
[12] [2014] UKSC 2, para 71.
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