In rare circumstances, the court can repair a Will improperly drafted by a lawyer.
The law can be found in various cases including the Bank of Nova Scotia, the Haugrud 2160NSC 8150 affirmed on appeal, Whittingham v. Crese and Ross v. Caunters. The court has held that it will fix a Will if the lawyer made a mistake in one of these three situations:
- The lawyer accidentally make a mistake because of a typographical or clerical error.
- The testator (the person making the Will) instructions were not understood.
- Where the testator’s instructions were given but for some reason were failed to be carried out.
One usually would have to look at the notes of the lawyer and contrast them with that which had actually been drafted and the Will that was finally signed.
The court has the power to add or remove words if the court is satisfied:
- Upon reading the Will, it is clear that a mistake was made in drafting it.
- The mistake does not accurately or completely express what the testator’s intentions were.
- The testator’s intention must be so clear from the words of the Will that no other contrary intention can be assumed.
- The proposed correction by adding or removing words must give effect to what the testator intended from reading the Will as a whole and in light of the surrounding circumstances.
- The court will admit outside evidence (that is something other than reading the incorrectly drafted Will) to establish the error when it comes from the lawyer who made the mistake and can swear directly about what the testator intended. It is also old law that a court is to interpret a Will with a presumption against an intestacy. By virtue of an intestacy, one means that there is no proper disposition of the assets and then the testator’s instructions are being frustrated.
While complicated and not frequently done, it is a remedy available and is in sharp contrast to the usual view of the court in Ontario that a Will speaks only within its four corners without looking at outside evidence.