The Percentages That Never Added Up to a Hundred

The situation

'Can you just fix the number? Your own file proves it was supposed to be sixty-forty,' Ji-ho asked, sliding a copy of his late wife's will across the table with the residue clause circled in red pen. It was a fair question. Our drafting file, from when we prepared the will four years earlier, showed clear instructions from his wife: sixty percent of the estate residue to their daughter Seo-yeon, forty percent to their son Biniam. The signed will read fifty percent and forty percent, numbers that added up to ninety, leaving ten percent of a roughly $1.8 million estate with nowhere to go.

Ji-ho and his wife had been our clients for over a decade, updating their wills twice before this version. At the signing appointment four years earlier, his wife had been distracted, her mother had been hospitalized that same week, and our office had flagged the percentages for her to check carefully before signing. She signed without catching it; Ji-ho, told to review it too, hadn't either.

His wife died eighteen months later. Probate proceeded normally until the estate's accountant, calculating distributions, noticed the percentages did not sum to a hundred. It was unclear whether the missing ten percent fell into an unintended partial intestacy, following the rules for a will that does not fully dispose of an estate, or whether a court could correct the clause to match what the file showed she actually instructed.

Seo-yeon wanted the error fixed to sixty-forty, consistent with the drafting file. Biniam, a software developer whose share stood to shrink if the correction went through, took a different view. He argued that the fifty-forty split, even though it left a gap, might reflect a genuine, later change of heart his mother never got around to formalizing, rather than a simple typo, and that filling the gap through intestacy rules would work out closer to what he believed she truly wanted.

Ji-ho found himself in an awkward position as executor, a role that required him to administer the estate impartially between his two children even while he privately believed the sixty-forty split was obviously what his wife had meant. He could not simply decide and distribute accordingly; an executor who unilaterally resolves a contested clause risks personal liability if a beneficiary later challenges it. The estate needed an agreement or a court order, and at seventy-eight, recently widowed, Ji-ho had not expected to be managing a dispute between his own children.

Why this was harder than it looked

Rectification is a narrow remedy. A court can correct a will after death when there is clear evidence that a clerical or drafting error caused the document to say something other than what the testator actually instructed, using the lawyer's file, notes, and correspondence as proof. What a court will not do is rewrite a will because a beneficiary, or an executor, believes a different outcome would be fairer, or because someone changed their mind and never updated the document. The line between an error and a genuine later intention is exactly where this case sat.

Our drafting file was strong on one point and weak on another. It clearly showed the original instructions as sixty-forty, recorded in our intake notes and the first draft sent for her review. But the file also showed she had called our office roughly a year before her death asking a general question about how lifetime gifts affect a will's distributions. She had made a loan to Biniam two years earlier to help with a business, a loan that was never formally forgiven or repaid. The call was brief, and no instruction was given to change the will, but it was enough for Biniam to argue that the fifty-forty split might have been a considered adjustment for that loan, not a typo.

That single phone call complicated what would otherwise have been a straightforward clerical correction; the evidence needed to affirmatively show the error was clerical, not merely that her intentions might have changed. Biniam's position did not need to be strong to create real risk; it only needed to be credible enough that a court could not be certain, and uncertainty is expensive in litigation. There was a further wrinkle in how Ontario law treats a residue clause that fails to add up: the shortfall does not default to a fair-seeming split between the named beneficiaries, but follows the statutory rules for property a will fails to dispose of, rules that can pull in an unnamed party entirely. That possibility gave both Seo-yeon and Biniam a reason to want the ambiguity resolved rather than left to run its course, even while they disagreed sharply about what the resolution should be.

Ji-ho, meanwhile, carried a harder truth: he had been told, twice, to review the percentages before his wife signed, and neither of them had. That did not weaken the legal argument for rectification, which turns on the testator's true intention rather than anyone's diligence, but it meant the family was paying, in time and tension, for a five-minute review that never happened.

What we did

1. Assembled the complete drafting file, including the original instruction letter, the first draft with the sixty-forty split, the intake notes, and every email exchanged before signing, because rectification applications succeed or fail on the strength and completeness of this kind of contemporaneous record, not on anyone's memory of what was intended four years earlier. That file became the single strongest piece of evidence in the whole matter, and having it organized chronologically before anyone else saw it let us assess its real strength honestly.
2. Located and reviewed the phone call notes about the loan to Biniam ourselves, rather than waiting for his lawyer to raise them, so we understood the full risk before filing anything, could brief Ji-ho honestly about the weak point in an otherwise strong file, and were not caught off guard mid-proceeding by evidence we should already have known about. Finding it first meant we controlled how and when it was disclosed.
3. Assessed the loan's actual relevance and concluded the call, on its own, did not amount to a documented instruction to change the will, since no follow-up letter, revised draft, or signing appointment ever occurred after that call, and a single unresolved question about a debt is not the same as evidence of a considered change of mind, which weakened Biniam's theory considerably without eliminating it entirely.
4. Advised Ji-ho candidly about the risk of full litigation, explaining that pursuing a full sixty-forty correction through a contested court hearing carried real cost, real delay measured in months rather than weeks, and real uncertainty, given that Biniam's argument, while not strong, was not frivolous either and could survive a preliminary challenge long enough to make a hearing expensive regardless of who ultimately won it.
5. Opened settlement discussions with Biniam's counsel before filing anything contested, presenting the drafting file evidence plainly, naming the loan phone call ourselves rather than waiting for the other side to raise it, and proposing a negotiated resolution that avoided a full hearing on credibility and intention. Raising the weak point voluntarily built enough credibility with the other side that they engaged seriously rather than digging in.
6. Negotiated a compromise distribution of fifty-seven percent to Seo-yeon and forty-three percent to Biniam, closer to the original instructions than the flawed document but short of full correction, reflecting the genuine uncertainty the loan phone call had introduced and what each side stood to lose, in money and in time, by pushing the dispute further toward a hearing neither could be sure of winning.
7. Brought the compromise to the court on consent rather than as a contested rectification application, which resolved the missing ten percent cleanly, avoided a ruling on whose account of the mother's intentions was correct, and avoided the risk, cost, and delay of a full hearing where the outcome was genuinely uncertain for both siblings and for the estate as a whole.
8. Prepared a clear affidavit of documentary evidence from Ji-ho, walking through the original instructions, the first draft, and the signing appointment in his own recollection, so the consent order rested on a full record rather than the drafting file alone, in case either side or the court needed to revisit it later. That record gave the settlement a documented foundation independent of memory.
9. Explained the executor liability risk to Ji-ho directly, making clear why he could not simply distribute the estate according to his own belief about his wife's true intentions without a signed agreement or court order, which helped him understand the process as protecting him personally, not just resolving the dispute between his own two children, and made him far more comfortable signing the consent order once he saw why it mattered.
10. Advised both siblings separately on the tax and timing consequences of the revised split, since a change to residue percentages after probate had already begun required adjusting estimated distributions and coordinating with the estate's accountant to avoid double-filing or mismatched reporting, and each sibling wanted that explained candidly, in plain terms, without the other one in the room listening in and reacting to every figure discussed.
11. Documented the loan to Biniam separately within the estate's records, noting its status as an unresolved, unforgiven debt rather than folding it silently into the settlement, so the compromise did not accidentally erase a question the family might need to revisit if the loan itself became relevant to some other part of the estate later, such as a future dispute over Biniam's own eventual estate or a later argument between his own children.

The outcome

The estate was distributed at fifty-seven percent to Seo-yeon and forty-three percent to Biniam, correcting most, but not all, of the gap between the flawed will and the original instructions. Against the fifty percent the flawed will actually gave her, Seo-yeon gained seven points, worth about $126,000 on the $1.8 million residue; against her mother's original sixty percent instructions, she still came up three points short, about $54,000 shy of a full correction. Biniam kept a share larger than the drafting file alone would have supported. The compromise also meant nobody had to test what the missing ten percent would have done on true partial intestacy — since Ji-ho survived his wife, that gap would have drawn in his own spousal preferential share ahead of either child, a complication both siblings were glad to avoid.

The estate also paid legal costs on both sides, several tens of thousands of dollars in total, a cost that would not have existed if the percentages had been checked before signing four years earlier. That is the loss that could not be undone: money spent proving what a five-minute review would have caught for free.

Ji-ho was direct about the lesson afterward. He had been told, at the appointment where the error occurred, to review the numbers, and had not done it, not from distrust but because the moment was difficult and the review felt like a formality. It was not one. Rectification contained the damage, restoring most of the intended split, but it could not erase the cost of a mistake a careful read-through would have caught for free.

Seo-yeon and Biniam's relationship survived the process, though both later admitted the months of correspondence and the negotiated compromise left a residue of resentment that a fully clean sixty-forty distribution might not have. Biniam, for his part, maintained he still believed his mother's later intentions were genuinely mixed, even after accepting the settlement, which is itself a reminder that a negotiated compromise resolves a legal dispute without necessarily resolving everyone's private read of what a parent truly wanted.

What you can learn from this