Ontario Court of Appeal upholds will rectification excluding non-marital child from estate

The Ontario Court of Appeal upheld a ruling that rectified the will to specifically include only the testator’s children from the marriage as beneficiaries, thereby excluding his son from a relationship before marriage.

The dispute in Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142 revolved around interpreting and rectifying John Ihnatowych’s will. Alexander claimed to be John’s biological son from a prior relationship and argued that he was entitled to a share of John’s estate. He claimed a residuary interest in John’s estate as his biological son and, therefore, John’s “issue” under the “Residue Clause” in John’s will. He also claimed that his sons are John’s biological grandchildren and therefore beneficiaries of his estate under the “Grandchildren Clause” in the will.

Ulana Gorgi, the estate trustee and daughter of the deceased, sought rectification of the will to clarify the beneficiaries as per John’s true intentions. The application judge found that the will, as drafted, did not accurately reflect John’s specific instructions to benefit only his marital children and their descendants.

The legal debate centred on whether the will’s wording failed to carry out John’s instructions, a situation where rectification is deemed appropriate to align the document with the testator’s intentions. The appellate court referenced established precedents emphasizing rectification's role in preventing the defeat of testamentary intentions due to drafting errors or omissions.

Evidence presented, including John’s handwritten notes and testimony from the will’s drafter underscored John’s intent to limit his estate’s beneficiaries to his marital children and their descendants. The appeal court found that the application judge’s decision to rectify the will based on this evidence is consistent with the principles governing will rectification, which seek to correct errors that misrepresent the testator’s instructions.

Ultimately, the Court of Appeal dismissed the appeal, reiterating that rectification was correctly applied to ensure the will reflected John Ihnatowych’s clear instructions.