This Blog was written by Jane Martin, Scotia Wealth Management
In the matter of the Estate of John Ihnatowych, deceased[i]
In late March of this year, a decision of Justice A. Sanfilippo was released, rectifying the will of the late John Ihnatowych (the “Deceased”). The decision prompted me to consider how best to identify beneficiaries in a will – is it better to use class descriptions or to use specific names when drafting ‘grandchildren’s gifts and gifts of residue. The answer, in my view, is ‘it depends’. But definition clauses will definitely assist estate trustees and beneficiaries to understand a will-maker’s intentions, and offer a good opportunity to prevent the need for court applications to determine who to include or exclude in beneficiary classes.
The background of the application, which was initiated by the daughter and estate trustee of the Deceased’s estate, is summarized: the Deceased had two, now adult, children born within his marriage (the Applicant Ulana Olha Gorgi and her brother Markian Alexander Ihnatowych). Ulana has two children (the “Grandchildren”). When Ulana commenced her application for probate, Alexander de Berner (“Alex”) presented himself claiming to be a child of the deceased. He has two minor children. The application was commenced by Alana to determine whether Alex and his children ought to be considered as beneficiaries of the estate, pursuant to the residual gifts left to the Deceased’s “Issue” and “grandchildren”.
The relevant clauses were drafted as follows:
Ten percent (10%) of the residue of my estate is to be distributed between my grandchildren alive at the date of my death, in equal shares per stirpes, and administered as set out below.
The balance of the residue of my estate is to be paid and transferred to my issue alive at the date of my death in equal shares per stirpes.
The will was rectified to read:
Ten percent (10%) of the residue of my estate is to be distributed among the children of Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death, in equal shares per stirpes, and administered as set out below.
The balance of the residue of my estate is to be paid and transferred to Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death in equal shares per stirpes.
Justice Sanfilippo reviewed the law applicable to rectification applications, the extrinsic evidence of the lawyer who prepared the will, and the evidence of Alex of his relationship with the Deceased. Justice Sanfilippo determined that for the purpose of determine the rectification application, it was not necessary to decide whether Alex was in fact a child of the deceased. He also ruled that evidence of the Deceased’s relationship with Alex after the date of the will was not relevant to the issue of rectification. Sanfilippo relied upon the evidence of the deceased’s intentions at the time the will instructions were provided, the will drafted and executed, in concluding that the Deceased’s intentions were not carried out in the will which was signed. There was no ambiguity in the impugned clauses, nor was there any challenge to overall validity of the will.
The drafting lawyer’s evidence was that the Deceased consistently referenced his Children by name when providing instructions for the will, and this was reflected in the lawyer’s notes and the notes provided to the lawyer by the Deceased when providing will instructions.
Sanfilippo concluded that the principles set out in Robinson Estate[ii] were established and support an Order rectifying the Will’s Grandchildren Clause and the Residue Clause. Consequently Alex and his minor children were not entitled to any share of the residue of the Estate of the Deceased.
So what does this mean in terms of best practices for drafting? I suggest that the best practices, whether to name children and grandchildren specifically or to use class designations, will vary throughout the lifespan of our clients and will vary to reflect the structure of our clients’ families.
As I review draft wills (I am not currently in role where I am drafting wills) – I consider the following questions:
How old is the will-maker? Do they have children? Are they likely to have more children? Given their identity and expressed intentions, is theirs a family likely to use reproductive technology in building their family? If they have children, do they also have grandchildren? Given respective ages, how likely is it that the family will grow between the date of the will and the eventual death of the will-maker? For example, for a ‘grandchildren’s trust’ – is the language sufficient to expand to include grandchildren born after the date of the will? What does the will maker want to have happen, how do they want after-born grandchildren treated within their estate? Is this a will that should include limiting language or expansive language?
Many, especially more complicated, wills use definition clauses to clarify the inclusion or exclusion of persons from classes of beneficiaries. Where no definitions are included, statutory definitions ought to apply. The definition of “child”, “grandchildren” and “issue” have expanded pursuant to recent statutory amendments.[iii] Consider whether a draft will ought to contain limiting language or confirm the reliance upon expansive definitions so that a will-maker’s intentions are accurately reflected.
I suggest that this decision acts as a good reminder that asking probing questions, and reflecting the answers to those questions in the resulting will, is an important part of estate planning. There is no ‘one size fits all’ family structure, nor is there a ‘one size fits all’ manner of building a family (legal marriage, common law relationships, birth and parentage as defined in the Vital Statistics Act, adoption, adoption of step-children, surrogacy and all forms of assisted reproduction, and all manner of combinations). Some careful exploration to identify clients’ circumstances and to ensure that what ends up in a signed will reflects clients’ intentions to include or exclude certain individuals may avoid the need to rectify a will. Now if someone can suggest a delicate way to ask a client whether they may have any secret children lurking out there in the bushes, that would be much appreciated.
Jane E. Martin, B.A., LL.B
Team Lead, Estates and Trusts Consultants, Scotiatrust.
[i] Gorgi v. Ihnatowych, 2023 ONSC 1803 (CanLII).
[ii] Re Estate of Blanca Esther Robinson,  O.J. No. 2771(“Robinson Estate SCJ”), and affirmed in Rondel v. Robinson Estate, 2011 ONCA 493 (“Robinson Estate OCA”). Robinson Estate SCJ sets out the circumstances where the Court will rectify an unambiguous will that the testator has reviewed and executed:
Where there is no ambiguity on the face of the will and the testator has
reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors in three situations:
(1) Where there is an accidental slip or omission because of a
typographical error or clerical error;
(2) Where the testator’s intentions have been misunderstood; or
(3) Where the testator’s instructions have not been carried out.
[iii] Consider the definitions of the Succession Law Reform Act, R.S.O 1990, s. S. 26, as amended, ss. 1 and 1.1, and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended,