Part 1
One would think a Will is a Will and that we are all bound to follow just the words found in the Will itself.
However, the legal system is more flexible than that and in limited circumstances can fix or rectify a Will that does not address obvious drafting problems.
In the 2022 decision of the Court of Appeal for British Columbia in Simpson v. Zaste, the court in a long and exhaustive decision reviewed the law and facts.
One must be careful in that the law of British Columbia with respect to rectification is not identical to that of Ontario. However, British Columbia is a frequent leading source of the law of Wills. As we saw in 2021, as a result of covid, a number of B.C. provisions were enacted in Ontario.
British Columbia enjoys the Wills, Estates and Succession Act “WESA” which contains many provisions for which there is no Ontario equivalent. However at section 59 of WESA, we find much but not all of the current judge made law on rectification in Ontario. Specifically, WESA holds on an application 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 accidental slip or admission;
- A misunderstanding of the Will maker’s instructions; or
- A failure to carry out the Will maker’s instructions.
However the law in British Columbia is the same as Ontario in many respects. WESA does not permit rectification of an error stemming from the Will maker’s lack of appreciation of the legal effect of the terms in the Will. There is a difference between that and an omission in expressing the Will maker’s intention. In other words, if the Will maker turns their attention to an issue, but screwed up and did not appreciate the legal effect of what they were saying, that is an error beyond the court’s ability to correct. EXOTIC ATTACKS ON WILL VALIDITY THE USUAL vs THE UNUSUAL
It is in the Ontario Robinson Estate v. Robinson case, that the court felt that it could not fix an error when the provisions of the Will had been clearly and carefully reviewed by the Will maker. That is not the court’s authority.
Simpson v. Zaste featured the frequently occurring conflict between the children of a first marriage and the second wife. It is unnecessary to review the facts that led to this lengthy decision aside from a general comment. The husband and wife attempted to leave everything to each other in their mirror Wills with the exception that the husband wished to leave his 50% of the shares in his company to his children and his children alone. The difficulty was that the husband was bound by the terms of a shareholders agreement and strictly following the terms of the Will meant that the children would have received nothing.
To be continued and see part 2 of our case comment and blog. Part 2 Rectification B.C. Style
