{"id":53085,"date":"2026-07-15T11:17:38","date_gmt":"2026-07-15T15:17:38","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=53085"},"modified":"2026-07-15T11:17:41","modified_gmt":"2026-07-15T15:17:41","slug":"when-can-the-court-fix-a-will","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/estate-litigation\/when-can-the-court-fix-a-will\/","title":{"rendered":"When can the court \u201cfix\u201d a will?"},"content":{"rendered":"\n

After the death of a testator, it is sometimes the case that a party asserts that the testator\u2019s will contains a mistake that does not reflect the testamentary intentions of the deceased. In Ontario, in certain limited circumstances, the court can \u201cfix\u201d the will by employing the legal doctrine of rectification.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

In the context of a will, the court may rectify and correct unintended errors in three situations:[1]<\/sup><\/u><\/sup><\/a><\/p>\n\n\n\n

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  1. where there is an accidental slip or omission because of a typographical or clerical error;<\/li>\n\n\n\n
  2. where the testator\u2019s instructions have been misunderstood; or<\/li>\n\n\n\n
  3. where the testator\u2019s instructions have not been carried out.<\/li>\n<\/ol>\n\n\n\n

    Courts have most commonly permitted rectification where the lawyer admits to a mistake in the genre of a simple mistake or typographical confusion.<\/p>\n\n\n\n

    In Gorgi v. Ihnatowych<\/em><\/a>, <\/em>because of the way that the testator\u2019s 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\u2019s instructions had not been carried out, thus giving effect to the testator\u2019s wishes.[2]<\/a><\/p>\n\n\n\n

    In The Bank of Nova Scotia Trust Company v Haugrud<\/em><\/a>, the drafting lawyer mistakenly prepared a will that gifted \u201cClass D shares\u201d when he meant\u2014and had been instructed to write\u2014\u201cClass E shares\u201d, and the court was prepared to rectify the will.[3]<\/a><\/p>\n\n\n\n

    Extrinsic evidence (evidence outside of the four corners of the will) relating to the \u201csurrounding circumstances\u201d of the will is admissible on a rectification application. Such extrinsic evidence typically consists of an affidavit from the drafting solicitor confirming the testator\u2019s instructions and explaining the errors made by the solicitor that failed to give effect to or implement those instructions.[4]<\/a><\/p>\n\n\n\n

    It is important to note, however, that the court will not re-write a testator\u2019s 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.<\/p>\n\n\n\n

    Key takeaways \u2013 rectification of wills (Ontario)<\/h2>\n\n\n