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How far can a Court go to rectify a mistake in a Will?

What happens if after your death it is discovered that your will does not properly express your intentions? This was the issue in Re Verity, a recent decision of the BC Supreme Court. In this case, Beatrice Verity had no children but had 10 surviving nieces and nephews. Her will, as amended by two codicils, provided that the residue of her estate was to be divided into halves. One-half was to be divided equally among her 10 surviving nieces and nephews. The other half was to be divided equally among the four children of her deceased niece Doreen Fedorek (who I will refer to as the Fedorek children). The nieces and nephews claimed that this was a mistake and that Beatrice’s intention had been to divide the residue of her estate into 11 parts with only one of those parts to be divided equally among the Fedorek children.

The court had to consider whether there was a mistake in the will, and if so, whether the  equitable remedy of rectification would allow the court to correct the error.

In determining whether there was a mistake in the will, the Court looked at the circumstances surrounding the preparation of the will to determine Beatrice’s intention at the time she made her will. Based on evidence from various family members, the court was able to conclude that Beatrice had a very close relationship to her nieces and nephews and very little contact with the Fedorek children. The court also looked at Beatrice’s earlier wills, which divided the residue of her estate into 11 shares with one share to be divided among the Fedorek children, and found that none of the evidence indicated that Beatrice intended to make a will substantially favouring the Fedorek children over her nieces and nephews. Based on these findings, the Court concluded that there was a mistake in the will and that Beatrice’s late solicitor had either mistook her instructions, or more likely, made an error when he drafted her will.

After concluding that there had been a mistake in the will, the next question was whether the court could correct the mistake, which would require deleting numerous words from the will. Justice Affleck reviewed some of the principals that guide a court in the exercise of its power to rectify a will, and stated that this power permits a court to delete words that are included in error, but not to add new words to the will. In dealing with the argument that in previous cases, the courts have only been willing to delete a small number of words, Justice Affleck stated that there is no barrier to a rectification that requires a deletion of numerous words if to leave them in the will would perpetuate the mistake. As a result, the court was able to order a substantial rectification which involved the deletion of over 145 words from Beatrice’s will.