Rectification and Curing Deficiencies

Prepared by Albert Kaprielian, LL.B., M.A. of the Ontario Bar

Wills – Part V – Rectification and Curing Deficiencies

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V – Rectification and Curing Deficiencies

§188 In Alberta, the court may, on application, order that a writing is valid as a will, despite that the writing was not made in accordance with the requirements for formal wills, holograph wills, or military wills, if the court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.

§189 The court in Alberta may, on application, order that a writing, marking or obliteration is valid as an alteration of a will, despite that the writing, marking or obliteration was not made in accordance with the requirements of the Act, if the court is satisfied on clear and convincing evidence that it reflects the testamentary intentions of the testator and was intended by the testator to be an alteration of his or her will.

§190 The Alberta court may, on application, order that a will be rectified by adding or deleting characters, words or provisions specified by the court if the court is satisfied on clear and convincing evidence that the will does not reflect the testator's intentions because of an accidental slip, omission or misdescription, or a misunderstanding of, or a failure to give effect to, the testator's instructions by a person who prepared the will. This applies to the omission of the testator's signature only if the court is satisfied on clear and convincing evidence that the testator intended to sign the document but omitted to do so by pure mistake or inadvertence, and intended to give effect to the writing in the document as the testator's will. An application for rectification may not be made more than six months after the date of the grant of probate or administration is issued, unless the court orders an extension of that period.

§191 In British Columbia, even though the making, revocation, alteration or revival of a will does not comply with the Wills, Estates and Succession Act, the court may order that a record or document or writing or marking on a will or document be fully effective as though it had been made as the will or part of the will of the deceased person, as a revocation, alteration or revival of a will of the deceased person, or as the testamentary intention of the deceased person. The court may make such an order if it determines that the record, document or writing or marking on the will or document represents the testamentary intentions of the deceased person, the intention of the deceased person to revoke, alter or revive the will or testamentary disposition, or the intention of the deceased person to revoke, alter or revive testamentary disposition contained in a document other than a will. If an alteration to a will makes a word or provision illegible and the alteration was not made in accordance with the Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

§192 On application in British Columbia for rectification of a will, the court may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of an error arising from an accidental slip or omission, a misunderstanding of the will-maker's instructions, or a failure to carry out the will-maker's instructions. Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of one of these circumstances. The application for rectification must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date. If the court grants leave to make the application after 180 days from the date the representation grant was issued, a personal representative who distributed any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution was made after 180 days from the date the representation grant was issued but before notice of the application for rectification was delivered to the personal representative. This does not affect the right of any person to recover from a beneficiary any part of the estate distributed in these circumstances.

§193 In Manitoba and Saskatchewan, where, on application, the court is satisfied that a document or writing embodies the testamentary intentions of the deceased, or the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will, the court may, notwithstanding that it was not executed in compliance with the formal requirements imposed by the legislation, order that it be fully effective as though executed in compliance with the Act.

§194 In Ontario, in the absence of specific statutory authority, the doctrine of substantial compliance has been applied to give effect to the intentions of the testator.

§195 Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, the court may rectify the will and correct unintended errors in three situations: (a) where there is an accidental slip or omission because of a typographical or clerical error; (b) where the testator's instructions have been misunderstood; or (c) where the testator's instructions have not been carried out. The equitable power of rectification, in the estates context, is mainly aimed at preventing the defeat of the testamentary intention due to errors or omissions by the drafter of the will. A will won't be rectified to correct the testator's mistaken belief about the legal effect of words he or she reviewed and approved.