This SlideShare presentation discusses the basics of rectification and how it may affect lawyers who practice wills and estates law in Ontario.

1. The Basics of
Rectification
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What is Rectification?
• Rectification is an equitable doctrine that provides courts with the
authority to correct a contract in situations where an error has
occurred due to a common mistake between the parties
• Within the estates context, rectification of a Last Will and
Testament, trust document, or beneficiary designation may be
possible remedies where an error has occurred in the preparation
of the document

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Statistics
• According to the Lawyers’ Professional Indemnity Corporation
(LawPRO), will drafting errors are the issue most commonly
featured in claims against lawyers who practise wills and estates
law in Ontario, and they have been referred to as the “Achilles
Heel” of the profession in respect of this practice area
• Since 2002, claims against lawyers relating to the practice of wills
and estates have been on the rise
• Most errors are reportedly caused by client miscommunication and
issues in accurately recording the client’s instructions within the
document

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General Applicability of the Doctrine
• The applicability of the doctrine of rectification varies between
jurisdictions
• In Ontario, courts can (in certain circumstances) insert or delete
words to give effect to the intentions of the testator
• However, courts remain reluctant to grant this remedy, unless
certain conditions are met

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Situations in which Rectification may be
Permitted
• Rectification of a will is typically only available in situations in which
there is no ambiguity on the face of the document and the testator
has reviewed and approved the wording used within the document
that has been executed, and one or more of the following
conditions is also met:
– Typographical or clerical errors frustrate the testator’s
instructions;
– The testator’s instructions have been misunderstood; and/or
– The testator’s instructions have not been carried out

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Take-Home Points
• Lawyers should carefully document instructions received from a
client and review documents with clients before they are executed
to ensure that its contents accurately reflect the client’s wishes
• If an error in a will or other testamentary document is discovered
while the testator is still living and capable, it is much easier and
less expensive to have a corrected document executed than to
seek rectification after his or her death, which may or may not be
permitted by a judge

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Thank you for reading!