Estate Planning

Attention to Detail: An Expensive Lesson Learned

By Hull & Hull LLP

In a decision earlier this year, Justice Harris in Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44, looked at the construction of wills and fundamental issues giving effect to the testatrix's intent. The decision involved a 92 year old testator who was both capable and in control of her affairs. The testatrix made a will in 1996 which provided a legacy of $2,500, for each of the three respondents in the action. In 2006, the testatrix elected to make minor changes to her will.

After her death, it was discovered that the 2006 revision of her will increased each legacy to $25,000. The Estate Trustee brought an application for a declaration that the clause which amended the bequest was not reflective of the testatrix' true intentions. The Applicant asserted that the intended bequest was $2,500, and not the increased amount. The testatrix informed her friend that she intended to change her will with respect to only three issues, other than the bequest at issue. The drafting solicitor later stated that he inadvertently amended the bequests at issue to $25,000. Prior to signing, a friend of the testatrix and the drafting solicitor reviewed the will and the testatrix appeared to have read the will and none noticed the inadvertent error.

Rectification, an equitable remedy which seeks to prevent a written document from being used as an engine of fraud or misconduct "equivalent to fraud", was at issue this case. It was stated that the court's task in a rectification case is corrective and not speculative and is to be utilized with abundant caution. Further case law supports that where a Will was not read over to the testator and the mistake is made in circumstances in which the Court may omit words or dispositions, the mistake may be established on the balance of probabilities.

Upon review, the judge determined that it was improbable that the testatrix increased this legacy ten fold without notifying her trustee or making comment. As such, the court decided to rectify the will to reflect the intentions of the testatrix and reduced the bequest to $2,500.

Thanks for reading,

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

Full post as published by Toronto Estate Law Blog on November 20, 2009 (boomark / email).