By Patrick McMurchy
Section 59 of the Wills, Estates, and Succession Act, (“WESA”) authorizes a court to rectify errors in a will. The objective of rectification is to correct errors so that the will reflects the true intentions of the will-maker.
Under this section, the court has authority to rectify a will to correct an error arising from an accidental slip or omission, a misunderstanding of the will-maker’s instructions to the person who drafted the will, or from a failure to carry out the will-maker’s instructions.
Usually these are errors in drafting the will, such as typographical errors, or errors made while translating the instructions given by the will-maker into the final will. In one case, the error was that the legal assistant failed to turn over the page the lawyer had written the instructions down on and property was left out of the will.
Prior to WESA, which was passed in 2014, a court could only delete words that were included in a will by mistake, while now under the new provisions the court may also add words that should have been included but were left out.
Rectifying a will under s. 59 is different than curing a defective will or testamentary document under s. 58 of WESA. In theory the distinction is relatively easy to understand. In practice, at least in some cases, the difference may be very hard to determine. In one case, s. 59 was referred to in a situation where the husband had signed the wife’s will and the wife had signed the husband’s will.
A similar issue arises with the distinction between rectifying a will and varying a will. In theory it’s simple enough: under rectification the court is correcting the will to comply with the will-maker’s true intentions, whereas the objective in a variation action is to change the terms of the will despite the will-maker’s true intentions.
For example, what if the situation is that a spouse or child has been left out of a will entirely when they normally would have been included? Was it accidental or intentional? If its accidental, rectification could be used to correct the error, but if its intentional, an action would have to be brought to vary the will in order to include the excluded party.
This short article is intended to give the reader a general understanding of some of the basic principles respecting rectifying errors in wills. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.