Robinson Estate v. Robinson, 2010 ONSC 3484, tested the limits of the court’s power to rectify a Will. The testator, Blanca, owned property in Spain, England and Canada. Blanca executed a Will in Spain dealing with her European property. A Canadian Will dealt with her Canadian property, which Blanca subsequently revised. The solicitor who revised the Will routinely added a clause revoking all prior Wills. Blanca approved and signed the revised Will. The solicitor was not told about the Spanish Will until after Blanca died. An application rectifying the revised Canadian Will by deleting the revocation clause was brought.
The applicants claimed that the revocation clause was a mistake and should be deleted. There was affidavit evidence that Blanca did not mean to revoke her Spanish Will. The respondent, Blanca’s stepdaughter, took the position that the Canadian Will had already been probated and could no longer be rectified. Moreover, the language of the revocation clause was clear, unequivocal and approved by Blanca.
Based on the evidence tendered, the court acknowledged that Blanca never intended to revoke her Spanish Will and did not realize that the revocation clause did just that. However, the court declined to act. The court held that the equitable power of rectification was aimed mainly at preventing the defeat of testamentary intentions due to errors or omissions by the drafter of the Will. This case was not about a typographical error by the solicitor, the solicitor misunderstanding Blanca’s instructions, or the failure to implement Blanca’s instructions. The revised Canadian Will was drafted in accordance with Blanca’s instructions. The court therefore refused to correct Blanca’s mistaken belief about the legal effect of the words she had reviewed and approved. The revocation clause could not be deleted and the application was dismissed.
Other interesting points: The court also held that a grant of probate did not preclude an application to set aside probate so that the true intentions of the testator could prevail. Finally, and importantly, the court seemed to accept that a rectification application was subject to reasonable discoverability (i.e. two years from the date the claim was discovered, see section 4 of the Limitations Act 2002). This was not the case under the old limitations regime. (Robinson Estate v. Robinson has been appealed to the Ontario Court of Appeal. The appeal is scheduled to be heard in February 2011.)
Justin de Vries