Canadian court rectifies will to specify beneficiaries

Tuesday, 06 June 2023
The Ontario Superior Court of Justice has rectified the will of a deceased man to specify beneficiaries by name, in line with his testamentary intention.
handwriting will

John Ihnatowych (the deceased) died in 2020, leaving a 2009 will appointing his daughter Ulana Gorgi and his son Markian Ihnatowych as executors and trustees of his estate. When Gorgi and Ihnatowych applied for a certificate of appointment of estate trustee with a will, Alexander de Berner filed a notice of objection on behalf of himself and his children.

De Berner claimed that he was the deceased’s biological son and therefore had an interest in the estate. His children, he alleged, should be considered under the “grandchildren clause” set out in the will.

As it stood as executed, the deceased’s will provided that “ten percent (10%) of the residue of my estate is to be distributed between my grandchildren alive at the date of my death, in equal shares per stirpes, and administered as set out below” and “the balance of the residue of my estate is to be paid and transferred to my issue alive at the date of my death in equal shares per stirpes.”

Gorgi, who claimed she did not know of de Berner until after the deceased passed away, sought to rectify the will to specify by name herself, Ihnatowych and their children. The deceased’s lawyer testified that through the will and power of attorney drafting process, the deceased had referred to Gorgi and Ihnatowych by name and had never mentioned de Berner. The lawyer noted that he understood all instructions to refer to Gorgi and Ihnatowych and their children.

De Berner contended that he had a relationship with deceased, providing evidence that they had had contact in the period from 2010–2019. However, the judge pointed out that this period was after the execution of the will: “This evidence is not only inadmissible as extrinsic evidence that goes beyond providing facts and circumstances surrounding the making of the Will…but it is irrelevant to my consideration of the surrounding circumstances of [the deceased’s] execution of the Will on May 12, 2009.”

The court agreed with the deceased’s lawyer that the wording of the Grandchildren Clause and the Residue Clause did not accurately reflect the deceased’s intentions and instructions, which, as worded, could result in the estate passing to other people than Gorgi and Ihnatowych and their children.

Accordingly, the court ordered that the will be rectified and restated to specifically name the intended beneficiaries in the two clauses (Gorgi v Ihnatowych, 2023 ONSC 1803).


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