Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.
This is the sixth of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what happens if there is a mistake in the Will or if you are a dependant of the Testator / Testatrix (i.e. the person who made the Will) but are not adequately provided for in the Will.
What if there is a mistake in the Will?
A Will is only valid if the Testator / Testatrix knew and approved of its content. If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases. In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake. That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include this clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the Testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.
What if I am a Dependant?
If you are a dependant in Ontario and have not been adequately provided for in a Will, you might have some recourse. Section 58(1) of the Succession Law Reform Act allows a deceased’s dependants to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support. A “dependant” is defined under section 57 of that Act to include your: married spouse, spouse as defined in the Family Law Act, former spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependant and entitled to financial support under section 58(1) in court. If the court finds that the person is a dependant and has shown a need for financial support, then the court may order a certain amount of money be paid to them out of the estate. If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Legal Forms).
By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:
This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!
This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.