The recent Saskatchewan King’s Bench decision in Reader Estate v. Reader demonstrated the Court’s power to rectify a Will where a drafting error threatened to defeat the intention of the testator.

Background:

The factual background in Reader Estate included the below:

1. Sheryl Ann Reader (“Sheryl”) and Dale Rodger Reader (“Dale”) had married in 1972;
2. They had two children, Carmen Reader (“Carmen”) and Daryl Reader (“Daryl”). Both of Carmen and Daryl were born with cognitive and physical disabilities;
3. Sheryl and Dale separated on January 8, 2018;
4. Sheryl’s daughter Carmen died on March 7, 2018;
5. In September 2019, Sheryl signed a lawyer-drafted will dated October 2, 2019 (“Will”);
6. On November 1, 2019, Sheryl filed a petition seeking division of the family home and family property. Dale filed an answer on May 5, 2021;
7. Sheryl died on November 13, 2020. Sheryl in her Will left a life estate to her son, Daryl, in the form of a “Henson Trust”.  This type of trust is established primarily for the benefit of individuals with disabilities, particularly those who may receive government benefits. The key purpose of a Henson Trust is to protect the assets held within the trust from being considered as assets of the beneficiary for the purpose of determining eligibility for government assistance programs;
8. On February 8, 2023, letters probate issued in the Estate of Sheryl. They appointed Sheryl’s sisters, Linda Joy McCrank (“Linda”) and Debra Lee Olliver (“Debra”), as executrices of Sheryl’s Estate;
9. Daryl died on March 10, 2023;
10. On June 5, 2023, Dale was appointed as administrator of the Estate of Daryl;
11. On May 30, 2024, Dale Reader died;

Issues with the Will:

12. The Will contained an oversight. While the Will provided for a life estate for Daryl in the Henson Trust, this trust ended upon the death of Daryl. The Will did not then direct what would happen to the overall property remaining in the Estate after the death of Daryl. This was an omission by the lawyer who had drafted the Will in 2019;
13. The intention of Sheryl had been to designate her sisters, Linda and Debra, as beneficiaries in the Will relating to what property may still exist when Daryl died;
14. The lawyer who drafted the Will swore an affidavit to provide evidence about what instructions Sheryl had given him. It said in part:

9. I also explained to Sheryl that the Will should include provisions for who receives the benefit of the estate in the event that Sheryl either outlived Daryl or that Daryl dies before the whole of the Sheryl’s estate could be distributed to Daryl. Sheryl advised that in either of those circumstances she wanted her sisters, Linda Joy McCrank (“Linda”) or Debra Lee Olliver (“Debra”) to receive the benefit of the estate.

10. I drafted the Will as requested by Sheryl and in doing so included a provision that that [sic] Linda and Debra were the alternative beneficiaries, but I inadvertently failed to name Linda and Debra as the beneficiaries of any portion of the estate which remained in the event that Daryl outlived Sheryl but died prior to the entirety of the estate being distributed to Daryl.

Issue:

This article focuses on the below issues which were before the Court:

1. Issue 1: Did the Will provide for distribution of the Estate after the death of Daryl?
2. Issue 2: Should the Court rectify the terms of the Will to give effect to the intentions of Sheryl?

Decision:

The Court held the below:

1. Issue 1: Did the Will provide for distribution of the Estate after the death of Daryl?

The Court held that the Will, on its face, did not provide for the distribution of the Estate to a named beneficiary upon the death of Daryl.

The Court held that in the ordinary course, this drafting error would be corrected with consent of the affected parties. In this case, the dispute between Sheryl and Dale arising from their separation precluded such a resolution.

2. Issue 2: Should the Court rectify the terms of the Will to give effect to the intentions of Sheryl?

The Court held that it was appropriate that it re-write the drafting error to give effect to Sheryl’s intention at the time she signed the Will.

The Court noted that the Will’s failure to name Linda and Debra as beneficiaries of the residue was due to an admitted error by the lawyer. The Court accepted that Sheryl’s intention had been for Linda and Debra to inherit what remained of her estate after the death of her son, Daryl:

60      The evidence from the affidavits of Brenda Walper-Bossence and Donald Grant Orr satisfy me that Sheryl intended to name her sisters, Linda Joy McCrank and Donna Lee Olliver, as both her executrices and residual beneficiaries, to inherit what remained of her estate after the death of her son, Daryl. Ms. Walper-Bossence and Mr. Orr are senior, reputable lawyers. Their affidavit evidence is objective, convincing, and mutually corroborative of Sheryl’s intent.

The Court gave no criticism of the lawyer who made the drafting error, finding that such an error could “happen to anyone.” The Court held that this was an appropriate situation in which to correct the Will and reflect Sheryl’s intention at the time she made the Will.

Thus, the court rectified the Will. The Court did this by replacing para 3(c) of the Will with the below:

The intent of this change was to allow a final distribution of the Estate to Linda and Debra in equal shares, after payment of any outstanding debts or charges against the Estate.

Costs:

The Court reviewed prior case law and concluded that it was appropriate that Linda and Debra receive their costs from the estate. They had been required to bring this application to determine how to address the defect in the Will.

The Court therefore made the following order:

69 I see no reason not to follow this practice in this case. There was a defect in the Will which needed to be addressed. Dale challenged the Will, so no agreement was possible. Sheryl’s Executrices acted properly as trustees in applying to settle the issue. There were opposing views and claims which protracted the proceedings. The Court’s assistance was required to settle the matter.

70 I order that the reasonable and actual costs incurred by Sheryl’s Executrices be paid from the Estate. If there is a dispute over the reasonableness of the amount, that issue can be returned to me for decision.

Conclusion:

The result in Reader Estate was a practical one. It gave effect to what was the intention of the deceased, as to how her own property would be distributed.

Nowhere in the decision was the word “rectify” or “rectification” used. For the sake of interest, it is worth noting that the accepted legal term for re-writing a will is “rectification” of the Will. The equitable power of rectification is aimed at preventing the defeat of the testamentary intention due to omissions by the drafter of the will.

Where there is no ambiguity on the face of the will, and the testator has reviewed and approved the wording, 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;
2. Where the testator’s instructions have been misunderstood; or
3. Where the testator’s instructions have not been carried out.

In most situations, an application for rectification is supported by an affidavit from the solicitor who drafted the will documenting the testator’s instructions, and explaining how the solicitor or their staff failed to implement the instructions or made a typographical error (see Robinson Estate v. Robinson, 2010 CarswellOnt 4576, 2010 ONSC 3484 at para 24-25).