Construction of a Will, Estate Law, WESA s.59, Wills

Judge Rectifies Error from an “Accidental Slip” in BC Will

August 27, 2021 By Candace Cho

Can a BC Will be “corrected” if it contains an accidental slip or omission? In Jamt Estate (Re), 2021 BCSC 788 it was not noticed until after the will-maker’s death that the Will may have misstated the middle name of the sole beneficiary. Who should inherit the deceased’s estate: the deceased’s nephew (“Per Martin Jamt”) or the deceased’s brother (“Per Kare Jamt”)?

Instructions to prepare BC Will leaving estate to nephew

Egil Ruud Jamt passed away in Vancouver, British Columbia, on August 16, 2016 at the age of 91. He did not marry or have children. His only living relatives were his sister and several nieces and nephews, all of whom lived in Norway. Mr. Jamt’s Will had been prepared by a Vancouver lawyer in February 2012. Mr. Jamt’s instructions were to name his nephew as sole beneficiary of his estate. If the nephew predeceased him, Mr. Jamt instructed that the nephew’s two children should have the estate. Mr. Jamt told the lawyer that his nephew Per Martin Jamt was around 60 years old. Mr. Jamt said that he and his nephew had been together recently in Vancouver during the Olympics, and that Mr. Jamt saw his nephew every few years when he visited Norway. Mr. Jamt approved and signed the Will, and thereafter kept the original copy of the Will at his home.

Did the Will name the wrong relative as sole beneficiary?

After his death, a distant relative found the original copy of Mr. Jamt’s Will at his home. The Will listed the sole beneficiary’s name as “Per Kare Jamt.” This was in fact the name of Mr. Jamt’s brother, who had died in 1994. When Per Martin Jamt learned that Mr. Jamt had left a Will possibly naming him as a beneficiary, he asked the BC court to rectify his uncle’s Will by replacing the sole named beneficiary, Per Kare Jamt, with himself, Per Martin Jamt.

BC courts have the power to rectify Wills

Prior to 2014, BC courts did not have statutory authority to rectify a will in a situation such as this. BC estate law had a major overhaul in 2014 with the coming into force of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). One of the new rules introduced in WESA is section 59 which gives BC courts the power to rectify a will if it determines that the will fails to carry out the will-maker’s intentions. The discretion under WESA s. 59(1) can be used by the court where there is:

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

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

Since WESA s.59 came into force, there has been only one case that considered the court’s new power to rectify a will to reflect the will-maker’s true intentions. In that case, the will was rectified under WESA s. 59(1)(b) because it failed to carry out the will-maker’s intentions due to her lawyer’s misunderstanding about the number of children she had.

Using s. 59(1)(a) to rectify an accidental slip

The Jamt Estate (Re) case marks the first time that s. 59(1)(a) of WESA was used to rectify an error from an accidental slip. Justice Coval affirmed that the s. 59 analysis raises three questions:

First, what were the will-maker’s intentions with regard to the issue for which rectification is sought?
Second, does the Will as written fail to carry out those intentions?
Third, is that failure a consequence of one of the reasons specified in ss. 59(1)(a)-(c)?

Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of the error.

Should s.59 be used to rectify the name of the sole beneficiary?

Evidence strongly supported granting the rectification sought in Jamt Estate. Mr. Jamt had more than one nephew in 2012 but only one nephew was named “Per.” Mr. Jamt’s Will listed the nephew’s address and phone number in Norway, which were the same as Per Martin Jamt’s. Per Martin Jamt was around 60 years old when Mr. Jamt prepared the Will, he had visited Mr. Jamt in Vancouver during the Olympics, and he had two children (which lined up with Mr. Jamt’s intention that his nephew’s two children should have his estate if his nephew predeceased him). There could really be no doubt about who Mr. Jamt was referring to in his Will. Further strengthening the case was evidence from the lawyer who prepared the Will. He recalled that Mr. Jamt had no trouble understanding him. Mr. Jamt recited his assets, source of income and absence of any liabilities. He did not have any concerns about Mr. Jamt’s mental capacity.

Rectification of Will to carry out will-maker’s intentions

Justice Coval found that Mr. Jamt had testamentary capacity when he made his Will. He intended to leave his estate to Per Martin Jamt. His Will failed to carry out his intention to name Per Martin Jamt as sole beneficiary because of an error from an accidental slip in confusing his nephew’s middle name with that of his brother. Pursuant to WESA s.59(1)(a) the Will was rectified to replace the references to “Per Kare Jamt” with “Per Martin Jamt”. As the petition was necessary to ensure that Mr. Jamt’s Will properly reflected his true intentions, Per Martin Jamt was granted his costs as special costs payable from Mr. Jamt’s estate.

Rectification of Wills in BC

The decision in Jamt Estate is the first in which s.59 of WESA is applied to rectify an error in a Will arising from an accidental slip or omission. Extrinsic evidence of events that occurred before, when, and after the Will was created are essential to get at the state of mind, understanding and intentions of the will-maker. Our team of Vancouver estate lawyers will continue to monitor BC court judgments for applications to rectify an error in a Will pursuant to WESA s.59. If you have any questions about rectification of a Will or any other estate litigation matter, contact our lawyers today.