Estate Planning

RECTIFICATION OF WILLS

By Hull & Hull LLP

Yesterday, I introduced the matter of Estate of William Lipson (Pattillo, J., December 1, 2009, not yet reported).

There, multiple wills were executed. Unfortunately, the second will purported to revoke the first. In addition, both wills purported to deal with all assets, except for shares in a private corporation.

One of the issues addressed was whether the Court could rectify the wills by adding or deleting words. The Court reviewed numerous cases, and concluded that words could be added or deleted from a will to correct an error. Before doing so, the Court must be satisfied that:

i.                    Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;

ii.                  The mistake does not accurately or completely express the testator's intentions as determined from the will as a whole;

iii.                The testator's intentions must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and

iv.                The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator's intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.

The Court rectified the will by deleting the revocation clause of the second will (so that the first will was not therefore revoked), and by altering the disposition clause of the second will so that it only dealt with shares that the deceased owned in a private corporation.

These alterations, the Court concluded, best gave effect to the intentions of the testator.

Thank you for reading.

Paul Trudelle

Paul E. Trudelle - Click here for more information on Paul Trudelle.

Full post as published by Toronto Estate Law Blog on December 09, 2009 (boomark / email).