Background
Eftychia Kentros’s 2017 will contained a significant omission, which the drafting solicitor acknowledged was his error. The will gave her husband, Manthos, a life interest in two properties she owned. It further stated that if her husband did not survive her by 30 days, the properties would go to her two grandchildren, Sofia and Matteo. However, the will failed to include a “remainderman” clause specifying who should inherit the properties upon the expiry of the husband’s life interest, should he survive for more than 30 days, which he did.
After the testator’s death, her husband Manthos took the position that the properties fell into the residue of the estate, which was left to him, making him the absolute owner. He transferred the properties to a revocable alter ego trust. The testator’s son, Dino, applied to the court, arguing the will should be rectified to give him an interest, or alternatively, that the properties should be distributed under the laws of intestacy. An application judge of the Superior Court of Justice found there was “clear, convincing and cogent evidence” that the testator intended her grandchildren to inherit the properties. The judge ordered the will be rectified by adding a new clause to that effect and declared the transfer to the alter ego trust void.
The Court’s Holding
The Court of Appeal for Ontario dismissed the appeal brought by the son, Dino, and a cross-appeal from the husband, Manthos. The court affirmed the application judge’s central finding: the testator’s subjective intention was to gift the two properties to her grandchildren, Sofia and Matteo, upon the termination of her husband’s life estate. The court’s primary duty in will interpretation is to give effect to the testator’s actual intention, determined by reading the will in light of the surrounding circumstances known to the testator (the “armchair rule”).
The court found that the evidence, including the specific gift-over clause benefiting the grandchildren in another contingency, the drafter’s admitted error, and testimony regarding the testator’s wishes, made it clear that she did not intend for the properties to fall into the residue for her husband or to pass by intestacy. While noting some legal uncertainty in Ontario regarding a court of construction’s power to physically add words to a probated will, the Court of Appeal concluded that the lower court’s order achieved the correct substantive result. Since the will, properly construed, resulted in the properties going to the grandchildren, there was no reason to set aside the order that accomplished this.
Key Takeaways
- A court’s primary goal in will interpretation is to ascertain and enforce the testator’s subjective intention regarding the disposition of their property.
- Where a will contains a clear drafting error or omission, courts will apply the “armchair rule,” considering evidence of surrounding circumstances to determine the testator’s true intentions and prevent them from being defeated.
- A testator’s intent for a remainder interest can be inferred from other parts of the will, such as a “gift over” clause that specifies beneficiaries in a different, but related, scenario.
Why It Matters
This decision reaffirms the principle that courts will intervene to correct clear drafting mistakes in a will to uphold the testator’s demonstrable intentions. It underscores that a solicitor’s acknowledged error will not necessarily frustrate a testator’s wishes, especially when there is strong extrinsic evidence clarifying those wishes. The ruling illustrates the robust power of will construction to look beyond literal text to achieve a just outcome. It also highlights an area of ongoing uncertainty in Ontario law concerning the precise remedial powers of a court when interpreting a will after it has been probated, distinguishing the functions of a court of construction from a court of probate.