Unfortunately, from time to time, errors are made in making a will, the implications of which leave much uncertainty as to the disposition of an estate. While the interests of beneficiaries and other stakeholders hang in the balance, courts are often asked to determine how a will should be interpreted and what, if anything, should be added or deleted to a will to resolve the uncertainty, contradictions and/or omissions. In fact, a large body of case law has developed outlining principles and rules to be followed when such situations arise.
In Lipson v. Lipson, 2009 CanLII 66904 (ON SC), Bernice Lipson, the widow of the late William Lipson, sought the opinion, advice and direction of the court regarding certain parts of Mr. Lipson’s Secondary Estate Will executed January 31, 2008. At the time of his death, he left two wills, one with respect to his “Primary Estate” (the “Primary Estate Will”) and the other with respect to his “Secondary Estate” (the “Secondary Estate Will”). The Primary Estate Will pertained to all of his property but excluded the property dealt with in the Secondary Estate Will, being all shares owned by him at death in the capital of any private corporation and all amounts owing to him at his death by such private corporations.
Amongst the questions put before the court were:
1. In light of the nature and effect of omitted and mistaken provisions of the Executed Secondary Will, should the court correct these mistakes by deleting particular paragraphs of the Executed Secondary Will and in their place insert sentences that clarify the relevant provisions?
2. If the answer to the above question is “no”, is there a partial intestacy with respect to the property in question owned by the Deceased at that time of his death?
3. If there is a partial intestacy, then who is entitled to the property in question under relevant legislation?
In reviewing the case law before it, the court concluded that before a court can delete or insert words to correct an error in a will, the court must be satisfied that:
(i) Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred
in the drafting of the will;
(ii) The mistake does not accurately or completely express the testator’s intentions as
determined from the will as a whole;
(iii) The testator’s intention must be revealed so strongly from the words of the will that
no other contrary intention can be supposed; and
(iv) The proposed correction of the mistake, by the deletion of words, the addition of
words or both must give effect to the testator’s intention, as determined from a reading of
the will as a whole and in light of the surrounding circumstances.
In the end, the court determined that it is perfectly clear from a reading of the Primary Estate and Secondary Estate Wills that the wording of Article I of the Secondary Estate Will is a mistake. The court also concluded that the wording of Article I of the Secondary Estate Will does not accurately state Mr. Lipson’s intentions as clearly expressed in the Wills. In the circumstances, therefore, and based on the authorities outlined, the court decided that it could delete or add words to Article I of the Secondary Estate Will in order to give effect to Mr. Lipson’s clear intentions. The court went on to outline the specific word deletions and amendments that should take place.
The case not only demonstrates the importance of careful drafting when making a will, but also shows that the factual background, circumstances and relevant legal principles will determine whether a will should indeed be changed after the death of the testator.
For assistance with interpreting a will or advice regarding a request to a court to change the contents of a will, please contact Andrea Kelly.
*****
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
