The recent Court of Appeal decision, Ihnatowych v. Ihnatowych, 2024 ONCA 142, asserts that judges have the authority to rectify deficiencies and errors in a will. This authority is to ensure that a testator’s intentions are faithfully carried out, even if there are mistakes in the document.
The decision references Re Estate of Blanca Esther Robinson, 2010 ONSC 3484, which outlines specific circumstances where a court may rectify a will:
- Typographical or clerical errors leading to accidental slips or omissions;
- Misunderstanding of the testator’s instructions; or
- Failure to implement the testator’s explicit directions.
The power to rectify a will is not explicitly stated in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). However, as clarified in Rondel v. Robinson Estate, 2011 ONCA 493, rectification is viewed as an equitable remedy within Ontario law.
In the Ihnatowych case, the issue involved John Ihnatowych’s will, which contained discrepancies regarding the beneficiaries. His eldest son, Alexander, from his first marriage, argued for a share of the estate based on his status as a biological child under the “Residue Clause” and also claimed benefits for his sons under the “Grandchildren Clause.”
The estate trustee, John’s daughter, sought rectification of the will to accurately reflect John’s true intentions. The application judge determined that the will, as drafted, did not correctly adhere to John’s specific instructions, which were to benefit only his children from his current marriage and their descendants. The legal question was whether the will failed to execute John’s instructions, a situation that justified rectification to align the document with his true wishes.
Evidence presented during the case, including handwritten notes from John and testimony from the will’s drafter, strongly supported John’s intent to limit beneficiaries to his children from his current marriage and their descendants. The Court of Appeal upheld the lower court’s decision to rectify the will based on this compelling evidence, affirming that rectification serves to correct errors that misrepresent a testator’s wishes.
The Ihnatowych case underscores the importance of a well-drafted will that clearly and accurately depicts the testator’s testamentary wishes.
At Blackburn Lawyers, our team includes experienced wills and estates lawyers dedicated to ensuring the precise articulation and execution of a testator’s intentions. To book a consultation, please contact us at 905-884-9242.
Disclaimer: This blog offers a general overview of a legal topic and does not constitute legal advice. Each legal matter is unique, and for personalized guidance, we recommend consulting with a qualified lawyer.
Written by Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
