Will Drafting Errors & Rectification
How do the Courts handle drafting errors in wills?
While the general rules is that an individual’s last will and testament may not be overwritten or altered so as to distribute their estate in any manner other than as the testator described in their will, the equitable power of rectification may be employed by a judge who believes that on a balance of probabilities, the will has been erroneously drafted so that the distribution of a testator’s estate as set out under the will is in contravention of the testator’s actual intentions.
The case of McLaughlin et al v. McLaughlin is an example of a situation where rectification of a will was required, due to a number of major drafting errors.
Elizabeth Ann McLaughlin died on April 23, 2012, at the age of 93. With her husband Thomas James and son James having predeceased her, Mrs. McLaughlin was survived by her five children: Thomas, Judith, Daniel, Wayne and Laurie.
Mrs. McLaughlin executed a number of wills in her lifetime in 1992, 1994, 2002 and 2010. Daniel, who had taken care of Mrs. McLaughlin prior to her death, was named as the estate trustee under Mrs. McLaughlin’s 2002 and 2010 wills, while Thomas and Judith, who had had no contact with Mrs. McLaughlin for several years, were excluded from her wills of 1994, 2002 and 2010. All the wills of were drafted by a lawyer named Michael Walsh. The 1991 will included Thomas and Judith as beneficiaries.
The 2010 will
The issues in this case center around the drafting of the 2010 will.
In a meeting with Mr. Walsh in 2010, Mrs. McLaughlin (accompanied by Daniel) gave instructions to Mr. Walsh to draft a new primary will as well as a secondary will. The primary will dealt with the residuary estate and the secondary will dealt solely with the distribution of the proceeds of the sale of her house. Mrs. McLaughlin’s reason for creating primary and secondary wills was to minimize the amount of probate taxes her estate would have to pay after she passed away.
As with the 1994 and 2002 wills, Mrs. McLaughlin advised Mr. Walsh that Thomas and Judith were to be excluded from the 2010 will. Unfortunately, the secondary will was accidentally drafted so that it:
- Revoked the primary will signed at the same time;
- Repeated the gifts under the will to Mrs. McLaughlin’s grandchildren and daughters-in-law; and
- Failed to add a residue clause to the secondary will.
The repetition of the gifts in the secondary will was a problem in that it would allow Mrs. McLaughlin’s grandchildren and daughters-in-law to claim the gifts under both the primary and secondary estates.
Even more unfortunate, the omission of the residue clause and revocation of the primary will caused an intestacy, which is essentially the same result as if Mrs. McLaughlin had no will, with the residue of the estate being divided equally among the five remaining children under s. 47(4) of the Succession Law Reform Act.
Daniel McLaughlin’s position
Daniel McLaughlin’s position was that the secondary will was drafted in a manner inconsistent with Mrs. McLaughlin’s intentions. His argument was that Mrs. McLaughlin could not have intended to repeat the gifts made under the primary will in the secondary will, nor had she desired to create an intestacy, due to her clear intention to exclude Thomas and Judith from benefiting from her estate.
Thomas McLaughlin and Judith Corrado’s position
On the other side, Thomas McLaughlin and Judith Corrado’s argued that the secondary will actually did reflect Mrs. McLaughlin’s intentions. Thomas and Judith gave evidence that they were not estranged from Mrs. McLaughlin and stated that they only avoided contact with Mrs. McLaughlin on account of her relationship with Daniel, who they claimed took advantage of Mrs. McLaughlin and manipulated her actions.
Thomas and Judith further testified that as Mrs. McLaughlin had initialled and executed both wills, she could not have failed to notice the repetition of the gifts, nor the fact that a residue clause was missing in the secondary will.
The case ultimately turned on whether Mrs. McLaughlin signed and executed the wills while knowing it would duplicate the gifts and create intestacy with the entire estate.
On a balance of probabilities, the Justice Lemon found that Mrs. McLaughlin had no intention of either duplicating the gifts to her grandchildren and daughters-in-law, or revoking the primary will.
Justice Lemon concluded that in the circumstances, it was clear that a mistake had been made. As a result, the wills did not accurately reflect the wishes of Mrs. McLaughlin and were therefore rectified in accordance with Daniel’s proposed amendments.
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