If a will contains a drafting error, it is well-established in Ontario that the courts may be able to correct it after the testator has passed away through rectification. While this doctrine has been utilized successfully in numerous cases in recent years,[1] rectification can still be difficult to obtain, as demonstrated by a string of recent cases where the courts dismissed requests for this relief. Not only is clear and cogent evidence required to obtain rectification, but in most cases, particularly where rectification is sought after probate has been granted, it appears that such evidence must come from the will-drafter, attesting to the drafting error. This article explores why evidence from the drafting solicitor is so critical when seeking rectification of a will, and then examines the rare circumstances in which this relief may be granted without such evidence. Lastly, a few practical tips for preparing an application to rectify a will are provided.
The Law of Rectification
To understand the importance of the will-drafter’s evidence, a quick overview of the doctrine of rectification is merited. The court may not be able to correct all errors in a will.[2] However, if it is clear on the face of the will that it contains a mistake and, as a result, does not accurately or completely express the testator’s intention, the court may be able to delete or, to a more limited extent, add words to the will in order to correct the error.[3] To obtain this relief, however, it is not enough to bring the mistake to the court’s attention — the court must also be satisfied “that the words of the will reveal the testator’s intention so strongly that no other contrary intention can be supposed.”[4]
If a will contains a drafting error but there is no ambiguity on the face of the will, rectification may also be ordered, but only in the following three scenarios:
- where there is an accidental slip or omission because of a typographical or clerical error;
- where the testator’s instructions have been misunderstood; or
- where the testator’s instructions have not been carried out.[5]
The civil standard of proof, being the balance of probabilities, applies when rectification is sought.[6] The onus is on the applicant to show the testator’s intentions using evidence which, in the words of the Supreme Court of Canada, exhibits a “high degree of clarity, persuasiveness and cogency.”[7] Such evidence is required to counteract the executed will.
Why the Will-Drafter’s Evidence Matters
The Superior Court of Justice has long recognized that the evidence needed to obtain rectification of a will can usually be obtained from the drafting lawyer, since counsel can often give evidence regarding the testator’s instructions and explain either how those instructions were misunderstood, that the instructions were not implemented, or that a typographical error was made.[8]
However, recent case law appears to go further, implying that the absence of evidence from the drafting lawyer may be fatal when seeking rectification of a will. For example:
- In Isard Estate v Gunn, the Ontario Court of Appeal upheld the application judge’s refusal to rectify a will that did not include a residue clause, affirming the judge’s finding that the lack of evidence from the drafting lawyer was “insurmountable.”[9]
- In Estate of Joyce Schulz v Locke, the British Columbia Supreme Court refused to rectify the testator’s will, as there was no error on the face of the will and the drafting solicitor was deceased and unable to give evidence regarding the alleged will drafting error.[10]
- In Constant Estate (Re), the Alberta Court of King’s Bench denied an application for rectification of a will which failed to name a residuary beneficiary; again, no evidence from the will-drafter was put before the court.[11]
According to the British Columbia Supreme Court, rectification applications that do not include evidence from the will-drafter tend to fail because when there is an “absence of affirmative evidence from the solicitor, the evidence of an error or mistake will necessarily be indirect, and the evidence of the will-maker’s intent is much less likely to emanate from an independent or disinterested source.”[12] As a general rule, direct evidence of the testator’s intent is inadmissible to prove a drafting error and obtain rectification when the court is sitting as a court of construction, including third-party evidence attesting to the testator’s intention.[13]
Not only is evidence from the drafting solicitor “expected” when applying for rectification of a will in Ontario,[14] but a review of recent case law from Ontario and also across the country confirms that, in the vast majority of cases where rectification was granted, the drafting solicitor gave evidence affirming the drafting error.[15]
That said, it is important to remember that evidence from a will-drafter does not necessarily guarantee success when rectification is sought. If the will-drafter is unable to locate the testator’s client file, for example, and thereby unable to refresh their memory regarding the testator’s instructions for their will, the will-drafter’s evidence may be of limited value.[16] Such a scenario demonstrates the importance of retaining estate planning files until after the client passes away and their estate has been administered.[17]
Obtaining Rectification Without Evidence From the Will-Drafter
Although rare, the court may rectify a will without evidence from the drafting solicitor under limited circumstances.[18]
First, if the testator’s counsel has passed away, as was the case in Verity,[19] it may be possible to ascertain the testator’s intentions and instructions, at least in part, from the will-drafter’s notes and the review of the testator’s previous estate planning documents. Alternatively, other sources of evidence may be useful, such as correspondence from the testator, testimony from disinterested witnesses like the individual present during the execution of the will, or even evidence “indicating that the testator had no opportunity to correct the mistake before their death or that the outcome was unintended by the testator.”[20]
Second, if there is no extrinsic evidence directly confirming the drafting error, it appears that rectification may be granted if the surrounding circumstances provide clear and independent evidence of the testator’s intentions.[21] For example, to prevent the revocation of a will by marriage in Fuchs v Fuchs,[22] the Court of Queen’s Bench of Alberta rectified the will to state that it was made in anticipation of marriage. The applicant’s failure to provide evidence from the drafting solicitor did not prove fatal because evidence of the surrounding circumstances when the will was executed enabled the court to make a “clear inference … that the Deceased instructed his lawyer to ensure that [his fiancée] validly received his estate, either before or after an intended marriage, and that the lawyer either misunderstood those instructions or failed to give effect to them.”[23]
Third, in rare cases, it appears that rectification may be granted if an error is simply obvious on the face of the will. For example, in Gordon v Gordon, the court rectified a drafting error, even though it was not expressly addressed in the drafting solicitor’s evidence.[24]
The limited circumstances under which rectification has been granted without evidence from the will-drafter also affirms that rectification will not be granted if “putative beneficiaries” simply put self-serving evidence of the testator’s alleged intent before the court and seek rectification,”[25] as such evidence is “logically incapable of directly proving the testator’s intent.”[26]
It is also possible to obtain rectification of a will without evidence from the will-drafter if rectification is sought before probate is granted. The Ontario Court of Appeal recently affirmed in Elizabeth Casey Cooke Family Trust v Dioguardi that when the court sits as a court of probate, as compared to a court of construction, other sources of evidence are admissible to prove a drafting error in the will, such as notes that the testator may have made regarding their testamentary intentions.[27]
Practical Lessons for Practitioners
If counsel are considering bringing an application to rectify a will, the case law indicates that the first thing to do is request the file of the drafting solicitor to see the actual instructions provided by the testator.[28] So long as those instructions and the contents of the estate planning file support an application for rectification, the next logical step will be to ask the will-drafter to affirm that the will contains a drafting error and to provide sworn evidence in support of an application to rectify the will.
If possible, it is advisable to bring the application before a certificate of appointment of estate trustee has been granted. Depending on whether there is any direct evidence of the testator’s intent, a rectification application may succeed, even if there is no evidence from the drafting lawyer confirming the drafting error.
If, however, the will has already gone through the probate process, affidavit evidence from the will-maker will be essential, bearing in mind that direct evidence of the testator’s intent is not admissible when applying for rectification from a court of construction in Ontario. Under such circumstances, the will-drafter’s affidavit ought to be limited to “the circumstances surrounding the preparation of the Will, the execution of the Will by the testator and the testator’s instructions” to the drafting lawyer.[29]
If the testator’s estate planning file cannot be located, and/or the will-drafter is deceased or takes the position that there has been no drafting error, and probate has already been granted, pursuing rectification simply may not be advisable. As demonstrated by the caselaw discussed above, it is improbable that the court, sitting as a court of construction, will rectify a will without evidence from the will-drafter. Not only must an applicant establish that the will contains a drafting error in order to obtain rectification - the applicant must also prove the testator’s actual intent or instructions through clear, persuasive and cogent evidence. While it may be possible to provide such evidence from a source other than the will-drafter, it is far from certain that such evidence will satisfy the standard of proof necessary to obtain rectification.
[1] See, for example, Mansour v Girgis, 2024 ONSC 1611, aff’d Girgis v Mansour, 2024 ONCA 913 [Mansour]; Gorgi v Ihnatowych, 2023 ONSC 1803, aff’d Ihnatowych Estate v Ihnatowych, 2024 ONCA 142 [Ihnatowych]; Hofman v Lougheed et al, 2023 ONSC 3437 [Hofman].
[2] Corbin v The Shepherds’ Trust, 2024 ONSC 4402 [Corbin] at para 57.
[3] Lipson v Lipson, 2009 CanLII 66904 (ON SC) [Lipson] at para 42; Corbin, ibid at para 57.
[4] Isard Estate v Gunn, 2025 ONCA 139 at para 10 [Isard], citing Lipson, ibid. See also Stuart v Sanford Estate, 2024 NBKB 192 [Stuart] at paras 53-54.
[5] Ihnatowych (CA), supra note 1 at para 7; Robinson Estate v Robinson, 2010 CarswellOnt 4576 (SC) at paras 24-25, aff’d Rondel v Robinson Estate, 2011 ONCA 493 [Robinson].
[6] Canada (A.G.) v Fairmont Hotels Inc, 2016 SCC 56 at paras 36-37 [Fairmont]; Estate of Joyce Schulz v Locke, 2024 BCSC 293 [Schulz] at para 50; Nugent v Lang, 2009 CanLII 26604 (ON SC) at para 15.
[7] Ihnatowych (CA), supra note 1 at para 38, citing Fairmont, ibid. Justice Brown also explains in Fairmont that the standard of proof applicable to rectification does not address “the quality of evidence by which that standard is to be discharged.” See also Simpson v Zaste, 2022 BCCA 208 [Simpson] at paras 102-103; Schulz, ibid.
[8] Robinson (SC), supra note 5 at para 25. When contacted regarding an alleged drafting error in a will in respect of which rectification and/or the lawyer’s evidence may be requested, it is advisable for drafting solicitors to notify LawPRO.
[9] Supra note 4 at para 11.
[10] Supra note 6.
[11] 2025 ABKB 346.
[12] Schulz, supra note 6 at para 51. At para 56, the court also discussed the “practical difficulty” of establishing that a testamentary instrument contains a drafting error or that it fails to give effect to the testator’s instructions when the will-drafter is not available to give affirmative evidence.
[13] See Elizabeth Casey Cooke Family Trust v Dioguardi, 2026 ONCA 85 at para 17 [Dioguardi]; Hofman, supra note 1 at paras 1, 42.
[14] Mansour (SC), supra note 1 at para 26.
[15] See, for example, Mansour, supra note 1; Ihnatowych, supra note 1; Hofman, supra note 1; The Bank of Nova Scotia Trust Company v Haugrud, 2016 ONSC 8150, aff’d Welton Estate v Haugrud, 2017 ONCA 831; McLaughlin et al. v McLaughlin et al., 2014 ONSC 3162; Daradick v McKeand Estate, 2012 ONSC 5622.
Outside Ontario, see Re: Peckover Estate, 2025 BCSC 1240; Simpson, supra note 7; Jamt Estate (Re), 2021 BCSC 788; Conner Estate v Worthing, 2020 BCSC 150; Huber Estate (Re), 2019 BCSC 866; Estate of Dora Agnes Ferguson, 2024 ABKB 770 (in this case the court corrected an error in the testator’s will and did not expressly refer to rectification); Becker Estate (Re), 2018 ABQB 360; Warren Estate (Re), 2015 ABQB 420; Ryrie v Ryrie, 2013 ABQB 370; Conner v Bruketa Estate, 2010 ABQB 517; Henderson Estate (Re), 2024 MBCA 95; Re Barry Estate, 2024 MBKB 81; Weiss Estate v Weiss, 2022 MBQB 13; Foster v Boone, 2010 NBCA 11.
[16] See, for example, Stuart, supra note 4.
[17] The Law Society of Ontario recommends that wills and estates practitioners keep estate planning files for at least 15 years after estate administration is complete. See the Law Society of Ontario, “Part B: Retaining client files” in Guide to closing, retaining, and destroying client files, online: <https://lso.ca/lawyers/practice-supports-and-resources/topics/managing-files/guide-to-closing,-retaining,-and-destroying-client/part-b-retaining-client-files-(1)#5-setting-the-retention-period-8>.
[18] Rectification has been granted in at least two cases without direct evidence from the will-drafter: Fuchs v Fuchs, 2013 ABQB 78 [Fuchs] and Verity (Re), 2012 BCSC 650.
[19] Ibid.
[20] Stuart, supra note 4 at para 32.
[21] See, for example, Stuart, ibid at para 33, citing Lipson, supra note 3.
[22] Supra note 18.
[23] Ibid at para 24.
[24] See Gordon v Gordon et al., 2022 ONSC 550 at paras 62-64. Despite lack of evidence from the drafting solicitor as to existence of a typographical error and inadmissible evidence from the applicant regarding the error, rectification was granted. This case is unique in that probate of the will had not yet been granted.
[25] Robinson (SC), supra note 5 at para 26.
[26] Robinson (CA), supra note 5 at para 37.
[27] Supra note 13 at para 18.
[28] If the applicant is not the estate trustee, it may be necessary to bring an application for disclosure of the testator’s estate planning file, or to ask the estate trustee to waive solicitor-client privilege. See Ian Hull, “A Refresher on Solicitor-Client Privilege & the Wills Exception” (2 August 2023), online (blog): Hull & Hull LLP <https://hullandhull.com/2023/08/refresher-on-solicitor-client-privilege-and-the-wills-exception/>.
[29] Ihnatowych (SC), supra note 1 at para 30; Hofman, supra note 1 at para 45.
