A Will is a formal legal document setting out the testator’s wishes in respect of who is to inherit their estate. When the testator dies, the executors and trustees must administer the deceased’s estate in accordance with the terms of the Will. In some cases, a Will can be ‘rectified’ – or altered by the court – to give effect to the true wishes of the testator.
What is Rectification?
The court may make an order for rectification of a Will to carry out the intentions of the testator, if the court is satisfied that the Will does not state the testator’s true intentions. The testator’s intentions may not be reflected by the Will because a clerical error was made in drafting, or for some other reason, the Will does not give effect to the testator’s instructions.
In cases, such as Daradick v. McKeand Estate, 2012 ONSC 5622 and Nugent v. Lang, 2009 CanLII 26604 (ON SC), the court intervened to correct a mistake committed by the lawyer drafting a will, where the mistake or omission would have drastically altered what the testator had clearly intended.
When will the court allow a Will to be rectified?
The court will not change a Will lightly, and will do so only in the most exceptional circumstances. This may take the form of deleting or adding words to a Will by necessary implication. Where there is no ambiguity on the face of the Will and the testator has reviewed and approved the wording, the Ontario courts, following the Rondell v. Robinson Estate case, will rectify the will and correct unintended errors in three situations:
- where there is an accidental slip or omission because of a typographical or clerical error
- where the testator’s instructions have been misunderstood, or
- where the testator’s instructions have not been carried out
How can we help?
If you are an estate trustee, executor or a potential beneficiary and are considering, or disputing, an application for rectification, contact the experienced Cross Border and Estate Administration lawyers at Rogerson Law Group.
Rogerson Law Group provides cross-Border Estate Litigation services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.
Contact us: by either calling us at (416) 504-2259 or filling out the contact form online.