A carefully drawn will is crucial. Wills are drawn by humans, however, and some mistakes inevitably arise. Wrong words can end up in a will by slip of a pen. Or a deceased might use words which are not a correct way of describing persons or property. Or perhaps the lawyer just didn’t quite understand what the deceased was trying to say.
In some cases, the law can allow you to “rectify” – or fix – such a will.
Evidence:
The goal here is to convince the court of what the testator meant to say, and what went wrong. The first step is to gather firsthand evidence surrounding the will, like the original instructions, and how the mistake arose.
Courts are more comfortable admitting and considering this evidence when it comes from the solicitor who drafted the will, rather than relying on evidence from the beneficiaries who may have motivations to change a will in their favor. Thus, you should begin by trying to find out more from the lawyer involved.
Other times, there might be clear-cut written evidence from the deceased’s own hand. A good example of this came from my home province of Saskatchewan. In the case of Heaton Estate, the deceased had provided the lawyer with a written memo showing her wish to benefit certain southern Saskatchewan museums with a 20% share of her estate. By mistake, the ultimate will only provided a 10% share to the museums.
The court was provided the deceased’s handwritten memo, and found that the deceased had indeed wanted “her generosity to be applied as per her memo.” Therefore, the museums received 20% and not 10%. To make this happen, the court effectively “added” the necessary words to the will.
Conclusion:
So long as wills are drafted by humans, mistakes will occur. If you encounter a drafting error in your loved one’s will, you should consult a lawyer on whether rectification can help fix it.
James Steele is an lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan (j.steele@rslaw.com). He practises in the area of estate litigation. The above constitutes general overview of the subject only, and readers are advised to consult a lawyer for specific advice.
Caselaw Databases for all Provinces-FYI
ReplyDeleteI stumbled across this while lurking, after reading about a recent case as posted by Lynne Butler.
Example of content..
Law Society Tribunal - Ontario
https://www.canlii.org/en/on/onlst/
https://www.canlii.org/en/databases.html
What an excellent find. I use www.Canlii.org on a regular basis and use it for all my research when I go to court.
DeleteLynne
Would this correction have to come from the court ? If I were an executor and made the decision myself to give the museum 20% instead of 10% am I putting myself at risk of another beneficiary challenging it or could I get their sign off before and make the correction ?
ReplyDeleteYes, it has to come from the court. The executor's job is simply to follow the will, and he or she has no authority to change anything or guess what the testator meant.
DeleteIn my view, getting the sign-off by the beneficiaries would be ineffective because they don't have the power to release you from something you weren't allowed to do in the first place.
Lynne