|
Estates - Wills - Rectification. Kentros v. Kentros
In Kentros v. Kentros (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against an order that rectified a will for lack of a 'remainderman clause'.
Here the court considered will interpretation, and the rectification remedy:[1] This appeal concerns a will that the drafting solicitor acknowledged did not reflect the testator’s wishes. The will was missing a remainderman clause. The bequests section gave the testator’s husband a life interest in two properties that the testator owned and provided that their two grandchildren should inherit the properties if her husband did not survive her for 30 days. The will did not, however, say who should get the properties at the expiry of the husband’s life interest should he survive the testator for more than 30 days.
[2] Sitting as a court of construction, the application judge concluded that the testator intended to give the properties to her grandchildren whenever her husband died. He ordered that language be inserted into the will to have this effect.
[3] The appellant contends that the application judge exceeded his limited powers as a court of construction and misapplied evidentiary rules. The appellants by cross-appeal agree that the testator intended to gift the properties to her grandchildren but argue that the application judge should have imposed a different remedy than rectification.
[4] For the reasons that follow, I would dismiss the appeal and the cross-appeal.
[5] This case reflects ongoing uncertainty in Ontario law regarding rectification after a will has been probated. The terms of the application judge’s order arguably exceeded his purely interpretive role as a court of construction. Properly construed in accordance with the testator’s wishes, however, the will gifts the two properties at issue to the testator’s grandchildren at the termination of her surviving spouse’s life interest, whenever that may be. Since the application judge’s order achieves this result, there is no reason to set it aside.
....
[27] The application judge relied on this court’s guidance in Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142, 493 D.L.R. (4th) 184, which endorsed the principles set out by Justice Belobaba in Re Estate of Blanca Esther Robinson, 2010 ONSC 3484 (“Robinson ONSC”), at paras. 24-25, aff’d 2011 ONCA 493, 106 O.R. (3d) 321 (“Robinson ONCA”), leave to appeal denied, [2011] S.C.C.A. No. 536. The application judge instructed himself that, to correct an error in a will, he must be satisfied that the “words of the will reveal the testator’s intention so strongly that no other contrary intention can be supposed”: Isard Estate v. Gunn, 2025 ONCA 139, at para. 10, citing Lipson v. Lipson (2009), 52 E.T.R. (3d) 44 (Ont. S.C.), at para. 42. Relying on Lipson, at para. 41, he concluded that he should consider both Effie’s 2017 will and evidence of surrounding circumstances, such as “the making of the will; the testator’s property at the time of the will; the testator’s use of property; the testator’s relationship to named and potential beneficiaries; and prior wills”.
....
[29] The application judge also found that the presumption against intestacy supported rectification: Re MacDonnell (1982), 1982 CanLII 1844 (ON CA), 35 O.R. (2d) 578 (C.A.), at p. 582. ....
....
[49] Absent an extricable error of law, the interpretation of a will in light of its surrounding circumstances is subject to review only for palpable and overriding error: Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 15. I do not find any such error here.
Relevant legal principles
[50] When asked to interpret a will, a judge’s task is to determine the testator’s actual or subjective intention regarding the disposition of their property: Trezzi, at para. 13; Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 36. The court, sitting in the place of the testator, “assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members”: Ross, at para. 39. This “armchair rule” is the “over-arching framework within which a judge applies the various tools for will construction”: Ross, at para. 41.
[51] In appropriate circumstances, a court will rectify a will to prevent the defeat of a testator’s intentions, in particular, in the face of errors or omissions by the will’s drafter: Ihnatowych, at para. 7, citing Robinson ONSC, at paras. 24-25. Evidence of surrounding circumstances should be taken into account before a court reaches any final determination of the meaning of words used in the will, “even if the words, themselves, do not appear to be ambiguous or unclear”: Zindler v. The Salvation Army et al., 2015 MBCA 33, 319 Man.R. (2d), at para. 14, cited approvingly by this court in Ross, at para. 41.
[52] A court of construction will interpret a will with a presumption against intestacy: if a will is “capable of two interpretation[s], one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’s property, it is presumed that the testator intended to dispose of [her] entire estate and did not intend to die intestate in respect of the whole or any part of the estate”: Oosterhoff, at p. 486. This presumption is especially strong if the testator purported to dispose of all of her property, for example, through a general residuary clause: Oosterhoff, at p. 486; Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2000), at §10.75.
[53] However, “[t]he court will not give an unnatural or forced meaning to words in order to avoid an intestacy”: Oosterhoff, at p. 487. A court must find “as a matter of necessary implication that there was an omission and what the omission was”: Kilby v. Harmer Estate, 1964 CanLII 19 (SCC), [1965] S.C.R. 24, at p. 32, per Spence J. (dissenting).
[54] In Ontario, there is lingering uncertainty regarding the scope of the court of construction’s remedial powers.[3] It is settled law that a court of construction may disregard certain words that do not accord with the testator’s intention or read in certain words as part of an interpretive exercise via incorporation so that the will does accord with the testator’s intention: Oosterhoff, p. 264. In doing so, the court does not change the physical text of the will but rather interprets the probated will and declares its meaning: Oosterhoff, pp. 264, 539.
[55] Some caselaw suggests that a court of construction in Ontario may go further by ordering the insertion or subtraction of words from a probated will, as the application judge ordered here. Lipson, a construction case, is a notable example. Justice Pattillo stated at para. 32 that “[i]t has been long been established in Ontario that the court has the power to delete or add words to a will by necessary implication” and set out the criteria to do so. This approach in Lipson was cited approvingly by this court in Ihnatowych at para. 44, and relied on by the application judge in this case. Lipson was also cited by this court in Isard Estate.
[56] But both Ihnatowych and Isard Estate were probate cases. As already mentioned, this court affirmed in Neuberger Estate that the function of and evidentiary rules applicable to a court sitting in probate are distinct from those of a court of construction. Neither this principle nor Neuberger Estate is mentioned in Ihnatowych or Isard Estate.
[57] None of the parties to this appeal took issue with the principles articulated in Lipson and Ihnatowych, although Dino took issue with how the application judge had applied them in this case. Ontario’s jurisprudence has been criticized both in the academic literature and by the Manitoba Court of Appeal, however, for its failure to provide clear guidance on the court’s powers in construction as well as the role of extrinsic evidence.[4] In my view, either a five-judge panel of this court or legislative reform are needed to clarify the law in Ontario on these issues. Fortunately, for reasons explained below, this appeal can be resolved without such clarification. . Isard Estate v. Gunn
In Isard Estate v. Gunn (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here where the lower court denied an application to rectify a will:[3] Daphne’s estate sought rectification of Paddy’s will so the residue of her estate would pass to Daphne’s estate. The application was dismissed, and Daphne’s estate appeals from that decision.
....
[7] While the application judge found there was an error in the will because it did not include a residue clause to address Paddy’s investments and bank accounts, she found that her testamentary intentions in this regard were unclear and declined to rectify it.
....
[10] The application judge rightly noted that to correct an error in a will, the court must be satisfied, among other things, that the words of the will reveal the testator’s intention so strongly that no other contrary intention can be supposed: Lipson v. Lipson, 2009 CanLII 66904 (Ont. S.C.).
[11] The application judge determined that based on the evidence, the residue clause was omitted through an error. She found that the codicil drafted by Paddy was not properly witnessed and therefore not valid. She determined that given the lack of certainty concerning Paddy’s testamentary intentions, the lack of evidence from the drafting solicitor was “insurmountable”. She made no error in so concluding.
[12] The application judge considered the codicil as part of the evidence concerning Paddy’s testamentary intentions but concluded that the evidence as a whole, including the surrounding circumstances, did not satisfy Lipson. Specifically, she was not persuaded that the evidence was so strong that no other contrary intention was plausible. Instead, the application judge found that there were other possible testamentary intentions and as such, she was not persuaded that it was Paddy’s intention that Daphne receive the residue of her estate. That finding was available to her on the evidence and there is no basis on which to interfere with it. It is not the function of this court to reweigh the evidence that was before the application judge. Her factual findings are rooted in the evidence and are entitled to deference. . Ihnatowych Estate v. Ihnatowych
In Ihnatowych Estate v. Ihnatowych (Ont CA, 2024) the Court of Appeal considers the use of extrinsive evidence to correct will errors:[36] As for the appellants’ argument about the evidence and standard of proof required, there is no question that extrinsic evidence may be admitted to establish an error in a will when the evidence comes from the solicitor who drafted the will, made the error and can testify to the testator’s instructions: Robinson [SS: Re Estate of Blanca Esther Robinson, 2010 ONSC 3484], at para. 26.
[37] The application judge correctly applied this standard and properly assessed the evidence against it. He noted that evidence of the circumstances surrounding the making of a will may be considered even if the words in the will appear to be clear on first reading, that only extrinsic evidence of the testator’s intention in making the will and the testator’s relationship to the names and potential beneficiaries are admissible, and that the court’s task is corrective and rectification must be used with caution.
[38] The evidence here met the test articulated in Fairmont Hotels of showing a “high degree of clarity, persuasiveness and cogency” such that rectification was appropriate. We say so for three reasons.
[39] First, the application judge found that John’s instructions regarding his Will were clear. John’s 2008 handwritten notes about his Will and Mr. Zarowsky’s handwritten notes of the instructions provided to him by John, supported Mr. Zarowsky’s evidence that John instructed him to prepare a will that transferred his assets upon his death to Ulana and Markian and their children only. There was no evidence that those instructions changed.
[40] Second, the application judge accepted Mr. Zarowsky’s admission that he did not carry out John’s instructions in the drafting of John’s Will in that neither the Grandchildren Clause nor the Residue Clause reflected John’s intention that his estate go only to Ulana and Markian and their children.
[41] Third, while the standard form will contemplated an equal distribution of the residue of his estate into as many equal shares as he had children who survived him and their children, there was evidence that John specifically intended to include Ulana and Markian but no evidence that he specifically intended to include Alexander and his children in his estate plan.
[42] Because the application judge’s conclusions are rooted in the evidence adduced on the application, they are entitled to appellate deference: Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, at paras. 9, 15 and 20, leave to appeal refused, [2022] S.C.C.A. No. 444. We see no palpable and overriding error in the motion judge’s application of the evidence to the test for rectification of a will. The principle of testamentary freedom means that John was entitled to draft a will that excluded the appellants: Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224, at para. 51 and Gefen at para. 38, citing Spence v. BMO Trust Co., 2016 ONCA 196, 129 O.R. (3d) 561, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 96. . Ihnatowych Estate v. Ihnatowych
In Ihnatowych Estate v. Ihnatowych (Ont CA, 2024) the Court of Appeal considers the doctrine of 'rectifying' a will:[6] On the application, the parties agreed on the legal principles applicable to rectification of a will as set out in Re Estate of Blanca Esther Robinson, 2010 ONSC 3484, at para. 24, aff’d 2011 ONCA 493, 106 O.R. (3d) 321, leave to appeal denied, [2011] S.C.C.A. No. 536.
[7] Robinson, at paras. 24-25, provides that rectification is primarily concerned with “preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will” and may be employed, “where the testator’s instructions have not been carried out”. The court in that case, at para. 24, listed three circumstances in which a court will rectify a will where there is no ambiguity on the face of the will, and the testator has reviewed and approved the wording:a. Where there is an accidental slip or omission because of a typographical error or clerical error;
b. Where the testator’s instructions have been misunderstood; or
c. Where the testator’s instructions have not been carried out. ....
ANALYSIS AND CONCLUSION
[22] The appellants claim that the application judge made an unprecedented application of the equitable doctrine of rectification. For the reasons that follow, we disagree.
[23] First, the application judge correctly invoked the third factor in Robinson to enable rectification, that is, where the testator’s instructions have not been carried out. This has been done in other cases.
[24] For example, in The Bank of Nova Scotia Trust Company v. Haugrud, 2016 ONSC 8150, 29 E.T.R. (4th) 195, at paras. 15-20 and 36, aff’d Welton Estate v. Haugrud, 2017 ONCA 831, at para. 2, the court concluded that the drafting lawyer misunderstood or failed to carry out the testator’s instructions when he referred in the will to an incorrect class of shares, despite the testator clearly setting out the proper class in his written instructions. The court therefore granted an order rectifying the will to ensure that it accurately reflected the testator’s intentions and instructions. Similarly, in Daradick v. McKeand Estate, 2012 ONSC 5622, 82 E.T.R. (3d) 324, at paras. 38-39 and 43-45, the court ordered rectification of a will where the lawyer took notes of the testator’s instructions that she wished for her daughter to receive the matrimonial home, but failed to include such gift in the will. Most recently, in Hofman v. Lougheed et al., 2023 ONSC 3437, 87 E.T.R. (4th) 263, at paras. 39-46 and 53-57, the court rectified a will to delete a clause, where the lawyer included a clause that excluded children born out of wedlock in accordance with his usual will-drafting practice which did not conform with the testator’s instructions.
[25] Accordingly, the application judge’s application of the equitable doctrine of rectification is not unprecedented.
[26] Second, the appellant claims the application judge erred by failing to apply the new test for rectification set out in Canada (A.G.) v. Fairmont Hotels Inc, 2016 SCC 56, [2016] 2 S.C.R. 720, at paras. 12-20, 34-38.
[27] The parties had agreed before the application judge that the Robinson case set out the correct test for rectification of a will, but the appellant now claims there is a new and different test in Fairmont that was not applied. That test is set out at paragraph 12 of Fairmont as follows:If by mistake a legal instrument does not accord with the true agreement it was intended to record … a court may exercise its equitable jurisdiction to rectify the instrument so as to make it accord with the parties’ true agreement. [28] The appellants have also taken issue with the quality of evidence that the application judge accepted. They claim that on the standard set out in Fairmont Hotels, there should be a presumption of validity and therefore clear evidence that leaves the court with little to no doubt about a mistake in order to rebut that presumption.
[29] We disagree that Fairmont Hotels sets out a new and different test for rectification of a will.
[30] The Fairmont Hotels case is distinguishable from the facts in this case as Fairmont did not involve a claim for rectification of a will that unilaterally bequeathed property to others. Rather, it involved a claim for rectification of an agreement between parties where the effect of the agreement was to produce an unintended tax consequence.
[31] The court in Fairmont Hotels held that rectification could only be used to correct an error in the recording of the agreement, not to rectify situations where an agreement produced an undesirable or unintended outcome, and invoked the concept of rectification “to restore the parties to their original bargain”.
[32] This holding in Fairmont Hotels is consistent with the principles in Robinson. As Belobaba J. held in Robinson, "Anglo-Canadian courts will not rectify a will to correct the testator's mistaken belief about the legal effect of the words he reviewed and approved."
[33] In this case, the question was not whether the Will had the intended legal effect – that is that John’s biological offspring would not be included as beneficiaries notwithstanding the wording that was used. Rather, rectification was available only on the basis that the Will did not conform to John’s instructions, that it did not accurately set out the specific bequests that John communicated to Mr. Zarowsky. Hence, the different outcome in Robinson. In that case, the drafting lawyer deposed that he believed that the testator did not direct her mind to the revocation clause in an Ontario will and did not intend her Ontario will to revoke her Spanish will. However, he had not received instructions to that effect. The court found that there was no error on the part of the lawyer because the Ontario will was drafted in accordance with the testator’s instructions. Accordingly, there was no drafting error and no basis for rectification of the Ontario will. In this case by contrast, the application judge found that the Will did not reflect John’s instructions and therefore, rectification was necessary.
[34] Given the parties’ agreement that Robinson provided the correct test for rectification of a will and the fact that applying the test in Fairmont Hotels would not require a different analysis or result, we do not give effect to this argument on appeal.
[35] For these reasons, we find the application judge made no unprecedented application of the equitable doctrine of rectification. Rather, he applied the correct test and considered the evidence required to seek rectification of the Will.
....
[43] Moreover, there is no evidence that the application judge confused will rectification with will interpretation. Rather, he held that it was not necessary to order an interpretation of the Will as John’s intentions in the Will were defeated by errors made by his lawyer in the Will and therefore rectification was appropriate.
[44] The application judge also correctly applied Lipson v. Lipson (2009), 52 E.T.R. (3d) 44 (Ont. S.C.), when considering the deletion and addition of words to correct an error in a will, by considering whether the Will reflected John’s intentions, reading the Will as a whole and in light of the surrounding circumstances. Rectification is concerned with errors in the recording of the true substance of the intention of the testator.
|
