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Costs, Rectification of Wills, WESA s.59

Rectification of Wills in BC

By Candace Cho

The Wills, Estates and Succession Act has been in force since March 31, 2014, and since that time, there have been few reported decisions in which the court is called upon to rectify an alleged error in a will using the power in section 59. Recently, the BC court applied section 59 in Huber Estate (Re), 2019 BCSC 866 to rectify an error in the wording of a will. The decision in Huber Estate provides helpful guidance from the court for Vancouver estate lawyers and litigants alike as to when section 59 may apply to correct drafting and other errors in wills to ensure the will carries out the will-maker’s intentions.

Power to rectify a will if it fails to carry out the will-maker’s intentions

Section 59 of the Wills, Estates and Succession Act gives BC courts the power to rectify a will if the court determines that the will fails to carry out the will-maker’s intentions because of, among other things, a misunderstanding of the will-maker’s instructions. It reads as follows:

59 (1)On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a)an error arising from an accidental slip or omission,

(b)a misunderstanding of the will-maker’s instructions, or

(c)a failure to carry out the will-maker’s instructions.

(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).

Instructions given to Vancouver estate lawyer in Huber Estate

Ms. Huber made a will in October 1998 naming her husband as executor and leaving the residue of her estate to him. The will provided that if her husband predeceased her, the residue of her estate was payable to her three sons in equal shares. In 2015, Ms. Huber went to see a Vancouver estate lawyer to make a new will. Ms. Huber told the lawyer that she only wanted to make a new will to change her executor, as her husband had since passed away. Ms. Huber instructed the lawyer that she wanted her three sons to benefit under her new will as they did under her 1998 will. A new will was drafted in accordance with those instructions (the “2015 Will”).

Dispute with respect to residue clause in the will

Ms. Huber died in 2018, leaving the 2015 Will as her last will. The 2015 Will provided that the residue of the estate be payable to Ms. Huber’s “children” and further stated that:

“If any of my children are not then living but such child has left children of his who is or are then living, then the portion that such deceased child would have received if he had been living on the 30th day following the date of my death shall instead be divided in equal shares amongst his children who are then living.”

The issue that arose was with respect to the meaning of “children” in Ms. Huber’s 2015 Will. Ms. Huber had a daughter who passed away in 1986, and Ms. Huber’s daughter had children still alive at Ms. Huber’s death. Ms. Huber never mentioned her daughter to the Vancouver estate lawyer who drafted the 2015 Will. The residue clause in the 2015 Will could be interpreted such that the estate be divided into four shares (one share for each of Ms. Huber’s sons, and one share going to her daughter’s children).

Application to rectify the will

One of Ms. Huber’s sons, acting as the executor of her estate, brought the rectification application as he believed there was a drafting error in the 2015 Will. More particularly, he sought to have the 2015 Will rectified so the residue clause would apply only to Ms. Huber’s sons. It was clear to the court that the will-maker wished for her estate to pass only to her sons – in other words, that “sons” and “children” were synonymous on the facts in this case. Evidence supporting that finding with respect to the will-maker’s intention was as follows:

  • The residue clause used the masculine gender in reference to the children of the will-maker. 
  • The 2015 Will made specific gifts to named grandchildren but did not include any gifts to the children of the will-maker’s predeceased daughter.
  • When making the 2015 Will, the will-maker completed an estate planning questionnaire, and on that questionnaire she said that she had only three children. 
  • When meeting with the Vancouver estate lawyer to give instructions for the preparation of the 2015 Will, she did not mention the daughter that predeceased her in 1986. At that time, she also gave the Vancouver estate lawyer instructions with respect to a piece of real property, which she wanted to be distributed in equal shares amongst her three sons.

The court granted the order sought and the 2015 Will was rectified to specify that the residue of the estate be payable in equal shares to the three surviving sons of the will-maker.

Costs of Vancouver estate litigation

With respect to costs, the parties in Huber Estate agreed that special costs of all parties should be payable out of the estate. The court agreed that this was an appropriate order to make as the application to rectify was necessary in order to ensure that the 2015 Will reflected the intentions of the will-maker.