Correcting Mistakes in a Will

To err is human.  However, when a mistake is made in the drafting of a Will, and the error is not discovered until after the testator has died, the consequences can be significant – both emotionally and financially. When a error is discovered after death, can a Judge rectify the error by deleting words from, or adding words to, the Will? The 2009 decision of Justice Pattillo in Lipson v. Lipson, provides assistance to counsel in understanding the circumstances in which the court can add or delete words to a will. Justice Pattillo confirms that the jurisprudence on the matter indicates that “it has long been an established in Ontario that the court has the power to delete or add words to a will by necessary implication” (at para.32). Justice Pattillo holds that before a court can add or delete words to a Will, it 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; (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 case at hand, Justice Pattillo found that the mistakes before him (which would result in the deceased’s major assets being excluded from the Will and therefore not being transferred exclusively to his wife, whom the testator had clearly intended to receive his entire estate) met the criteria outlined above and his Honour therefore ordered deletion of words necessary to rectify the mistake and give effect to the deceased’s true intentions. Mistakes will keep happening.  Whether they can be fixed in any particular case will depend on whether the criteria laid out by Justice Pattillo will be met so as to permit rectification by the Court.