In part 1 we began our exploration of the law of rectification British Columbia style as set out in the case of Simpson v. Zaste. Part 1 Rectification B.C. Style
The court was of the view that the Will failed to accurately reflect what the will maker husband’s true intention was. There had obviously been a desire by the husband, and as was confirmed in the drafting lawyer’s notes, to leave the shares of his company to his children. At the very least, the children should have received the value of those shares, but subject to the terms of the shareholder’s agreement. Part of that shareholder’s agreement called for life insurance.
This was an appeal from a trial decision which the Court of Appeal felt was overly generous to the children.
To quote the British Columbia Court of Appeal, “to restate the general principles of rectification within the context of WESA rectification aligns the Will with what the Will maker intended to and not what with the benefit of hindsight the Will maker should have intended to do.” The court relied upon the 2016 Supreme Court of Canada’s decision in Canada Attorney General v. Fairmount Hotel.
To meet the terms of rectification, the court required evidence. As stated in the Supreme Court of Canada in Fairmount, that evidence needs to exhibit a high degree of clarity, persuasiveness and cogency before substituting the terms of a written instrument with those said to form the party’s true if only orally expressed intended course of action”. In simple English, if you want the court the fix the Will, the evidence that you need to put before it must be very persuasive, clear and cogent. It is not a subject for speculation.
The appeal court looking at all the facts felt that it was clear that common sense would suggest that the husband never intended to give the net value of his shares to his children and that his true intentions can be gleaned from looking at not only the drafted lawyer’s notes, but the shareholder’s agreement.
It is interesting that this British Columbia Court of Appeal decision specifically pointed out that the Ontario decision in Robinson did not enjoy the provisions of section 59 of WESA. There is no ability as is permitted under WESA for affidavits to be filed expressing what indeed was the intention of the Will maker.
This author would not be surprised if the law in Ontario eventually was expanded to include all of the provisions of the rectification provisions set out in WESA. However, the differences are not that great, and it is important for all to remember that rectification, in other words, a limited ability to fix a mistake made in a Will does exist.