Estate litigation in Ontario often turns on the interpretation of a few carefully chosen words. But what happens when a will contains language that appears incomplete or internally inconsistent? A recent decision from the Ontario Superior Court of Justice in Hahn v. Thompson demonstrates how courts approach drafting errors, survivorship clauses, and the rectification of wills where a testator’s true intentions are unclear.

The case involved a family dispute over the meaning of an undefined term in a will and whether the Court should correct what appeared to be a drafting oversight. In doing so, the Court provided a useful review of the principles governing will interpretation, admissible evidence, and rectification in estate litigation matters.

Confusion Arose From Multiple Wills

The deceased signed a will in 2016 that divided the residue of his estate equally among his three sons. The will stated that each son would inherit his share if he was alive on the “division date.” If a son died before the “division date,” that son’s children would inherit instead. The problem was that the 2016 will never defined what “division date” meant.

An earlier will, signed in 2013, defined the term. Under that earlier document, the deceased’s wife was to inherit first if she survived him by 30 days. The “division date” was defined as the death of the survivor of the spouses. If one of the sons died before that date, his children would inherit his share.

After the deceased’s wife passed away in 2015, the deceased updated his will in 2016. The revised will removed references to his wife but retained references to the “division date” in several provisions. However, the definition itself was accidentally removed during the redrafting process. This omission created significant uncertainty after the deceased died in 2021.

Why the Undefined “Division Date” Mattered

One of the deceased’s sons died only 10 days after the deceased himself. That timing became central to the dispute.

The estate trustees argued that the undefined references to “division date” were obvious drafting errors. They asked the Court to rectify the will so that the son’s share would pass to his estate because he survived his father at the time of death.

The son’s child took a different position. He argued that the term should be interpreted consistently with common survivorship clauses, meaning beneficiaries had to survive the deceased by 30 days in order to inherit. Since the son died within 10 days, his share would instead pass directly to his children. The outcome materially affected who would ultimately receive a portion of the estate.

The Court’s Role in Interpreting Ambiguous Wills

The Court emphasized that the primary objective in any will interpretation case is to determine the testator’s intentions.

To accomplish that task, courts examine:

• The wording of the will as a whole
• The ordinary meaning of the language used
• The surrounding circumstances known to the testator at the time the will was signed

The Court reviewed the long-standing “armchair rule,” which allows the Court to place itself in the testator’s position by considering the circumstances surrounding the creation of the will. This includes factors such as family relationships, the nature of the estate, and the testator’s general circumstances at the relevant time.

However, the Court also confirmed an important evidentiary limitation. While indirect evidence about surrounding circumstances may be admissible, direct evidence about what a deceased person supposedly intended is generally not admissible unless a narrow exception applies. That distinction became significant in assessing the evidence presented by the parties.

Evidence from the Drafting Solicitor Played a Key Role

The estate trustees relied heavily on affidavit evidence from the lawyer who prepared the deceased’s earlier 2013 will.

The solicitor explained that his standard drafting practice was to include a 30-day survivorship clause between spouses, largely to avoid complications under Ontario’s simultaneous death provisions and to reduce duplicate estate administration costs. However, he also stated that he generally did not recommend similar survivorship clauses for gifts to children.

Although the solicitor did not personally draft the 2016 will, the Court accepted his evidence regarding the structure and intention of the earlier will.

The Court concluded that the 2016 will appeared to be a modified version of the 2013 will, where references to the deceased’s wife had been removed, but several references to the “division date” had mistakenly remained. Importantly, there was no evidence that the deceased intended to introduce a new requirement that his children survive him by 30 days before inheriting.

Why the Court Rejected the Alternative Interpretation

The responding beneficiary argued that the retained references to “division date” should be interpreted as preserving a 30-day survivorship requirement.

The Court acknowledged that this interpretation was not entirely unreasonable. However, the evidence did not support the conclusion that the deceased intended such a significant change between his 2013 and 2016 wills.

The Court noted several important factors:

• The deceased’s circumstances had not materially changed between 2013 and 2016, other than the death of his wife
• The earlier will would have allowed the son’s share to vest immediately upon the deceased’s death
• There was no evidence that the deceased intended to disinherit any grandchild
• There was no evidence that the deceased anticipated his son’s terminal illness or near-simultaneous death years later

The Court found it far more likely that the undefined references to “division date” simply remained in the 2016 will because of a drafting oversight.

The Court Ordered Rectification of the Will

After reviewing the evidence and surrounding circumstances, the Court concluded that the will should be rectified. The Court amended the relevant clause so that the deceased’s son would inherit his share if he survived the deceased, rather than surviving until an undefined “division date.” If the son had died before the deceased, his children would inherit instead.

The Court further noted that similar corrections should be made to the parallel clauses affecting the other sons.

This decision confirmed that Ontario courts may rectify a will where there is sufficient evidence of a drafting error and where correcting the error is necessary to give effect to the testator’s intentions.

Drafting Ambiguities Can Lead to Litigation

The decision in Hahn v. Thompson serves as a reminder that estate disputes are not always driven by allegations of undue influence or lack of capacity. Sometimes the central issue is whether a will actually says what the testator intended.

Where drafting inconsistencies create ambiguity, estate litigation may become necessary to determine how assets should properly be distributed. Courts have the authority to rectify a will where the evidence supports doing so, but the process can be time-consuming, emotionally difficult, and costly for families. Careful estate planning, periodic will reviews, and precise drafting remain some of the best ways to minimize future disputes and preserve testamentary intentions.

Eisen Law: Toronto Estate Litigation Lawyers Providing Top-Tier Support in Wills Disputes

Disputes involving ambiguous wills, survivorship clauses, trustee obligations, and estate distributions can quickly become complex. The estate litigation lawyers at Eisen Law can help beneficiaries, estate trustees, and family members navigate contested wills, rectification applications, and inheritance disputes before the Ontario Superior Court of Justice.

Whether you are dealing with questions about will interpretation, trustee conduct, beneficiary rights, or estate administration in Toronto or elsewhere in Ontario, obtaining timely legal guidance can help protect your interests and clarify your options. To schedule a consultation, please contact us online or call 416-591-9997 today.