When can the court “fix” a will?

After the death of a testator, it is sometimes the case that a party asserts that the testator’s will contains a mistake that does not reflect the testamentary intentions of the deceased. In Ontario, in certain limited circumstances, the court can “fix” the will by employing the legal doctrine of rectification.

Rectification is a remedy which can be used to address situations where an instrument documenting an agreement or agreed plan of action does not accurately reflect that agreement or plan of action.

In the context of a will, the court may rectify and correct unintended errors in three situations:^{^[1]}

where there is an accidental slip or omission because of a typographical or clerical error;
where the testator’s instructions have been misunderstood; or
where the testator’s instructions have not been carried out.

Courts have most commonly permitted rectification where the lawyer admits to a mistake in the genre of a simple mistake or typographical confusion.

In Gorgi v. Ihnatowych, because of the way that the testator’s lawyer had drafted the clause disposing of the residue of the estate, a child and grandchild whom the testator did not intend to benefit were to receive part of the residue. The courtpermitted the will to be rectified since the evidence established that the testator’s instructions had not been carried out, thus giving effect to the testator’s wishes.[2]

In The Bank of Nova Scotia Trust Company v Haugrud, the drafting lawyer mistakenly prepared a will that gifted “Class D shares” when he meant—and had been instructed to write—“Class E shares”, and the court was prepared to rectify the will.[3]

Extrinsic evidence (evidence outside of the four corners of the will) relating to the “surrounding circumstances” of the will is admissible on a rectification application. Such extrinsic evidence typically consists of an affidavit from the drafting solicitor confirming the testator’s instructions and explaining the errors made by the solicitor that failed to give effect to or implement those instructions.[4]

It is important to note, however, that the court will not re-write a testator’s will simply because one party prefers that it be drafted differently, and/or where there is insufficient evidence that the requested changes reflect what the testator intended. The rectification remedy is only available in the very limited circumstances outlined above.

Key takeaways – rectification of wills (Ontario)

The court does not have a general power to rewrite a will. Rectification is an exceptional remedy only available in limited circumstances.
Rectification may be granted when:
- there is a clerical or typographical error in the will;
- the testator’s instructions were misunderstood; or
- the drafting lawyer failed to implement the testator’s instructions.
Courts typically require strong extrinsic evidence, including an affidavit from the drafting lawyer, to confirm the testator’s true intentions.
Case law confirms a pragmatic, intention-focused approach (e.g., Gorgi; Haugrud), especially where the evidence clearly demonstrates that the will, as written, does not reflect the testator’s objectives.
Rectification is not available simply because one of the beneficiaries disagrees with the contents of the will, or where there is insufficient evidence of the testator’s intent.