Can a Court Fix a Mistake in a Will in Alberta? Rectification

You have read a will after a death and something looks wrong. A name is misspelled, a property is described incorrectly, or a gift seems to be missing, and you are fairly sure that is not what the person meant. It is natural to ask whether anyone can simply correct it.

Changing the words of a will after the fact is not something to try on your own. The route the Act sets out is an application to the Court. The Court has a specific power to rectify a will in limited situations, and a short deadline applies. This article explains how that power works and how it differs from other will problems.

This article covers the law of Alberta.

What rectification means

Rectification means the Court corrects the wording of a will by adding or deleting words so that it matches what the person actually intended. It does not let the Court rewrite a will because the result seems unfair, or because someone now wishes the person had decided differently.

The power comes from section 39(1) of the Wills and Succession Act. The Court may rectify a will if it is satisfied, on clear and convincing evidence, that the will does not reflect the testator's intentions.

What must be shown

The will must fail to reflect the testator's intentions for one of the reasons the Act lists. Those reasons are an accidental slip, an omission or a misdescription, or a misunderstanding or failure to carry out instructions by the person who prepared the will.

• An accidental slip, such as a wrong word or a typing error.
• An omission, such as a clause or gift left out by mistake.
• A misdescription, such as an incorrect description of a person or item.
• A misunderstanding, or a failure to carry out the testator's instructions, by whoever prepared the will.

The standard of proof is clear and convincing evidence. The Court must be satisfied to that standard that one of the listed reasons explains the gap between the will and the testator's intentions. What evidence will matter depends on your facts, so a lawyer can help you assess it.

The narrower rule for a missing signature

Where the testator's signature was omitted, section 39(2) allows rectification only if the Court is satisfied that the testator intended to sign and intended the writing to be their will.

This matters because a formal will must be in writing and signed, or the signature acknowledged, in front of 2 witnesses present at the same time. A holograph will must be wholly in the testator's handwriting and signed, and needs no witnesses.

The 6-month deadline and other look-alike problems

A rectification application may not be made more than 6 months after the date the grant of probate or administration is issued, unless the Court extends the period. The clock runs from the grant, not from the date of death. Because an extension is not automatic, it is wise to get advice early.

Rectification is also different from two other issues that people often confuse with it.

For a gift to a witness, the gift is not void if at least 2 other individuals witnessed the signature, or if the Court orders under section 40 that it is not void because the testator knew the person was a witness, intended the gift, and no improper or undue influence was exercised.

How a disputed application proceeds, and costs

Under the Surrogate Rules, contentious matters include caveats, formal proof of a will, disputes over the right to a grant and other estate disputes. Whether a disagreement over a rectification application is treated that way depends on the facts, so a lawyer can confirm. A contentious matter can be brought under Part 2 by filing Form C1 with an affidavit in Form C2.

On costs, the Court may order costs to be paid from the estate or by any person who is a party to the application. The general rule under the Alberta Rules of Court is that a successful party is entitled to a costs award against the unsuccessful party, but the surrogate rule above means the estate itself may be ordered to pay. Who ends up paying depends on the outcome and the Court's discretion.

What to do next

• Find the date the grant of probate or administration was issued and count 6 months from it.
• Keep the original will and any copies, drafts or notes showing what the person wanted.
• Ask the lawyer or firm that prepared the will whether they still have their file.
• Do not write on or change the will itself, since changes on a will are valid only if they meet the formalities or the Court validates them.
• Speak to a lawyer promptly about whether the facts fit section 39 and whether an extension may be needed.

Frequently asked questions