Huber Estate

There are very few reported cases in British Columbia in which a will has been rectified under section 59 of the Wills, Estates and Succession Act. This section has been in effect for five years, which is still relatively new. Section 59 allows the court to correct drafting and other errors in wills. The operation of this provision is illustrated in a recent decision of Madam Justice Francis, Huber Estate, 2019 BCSC 866.

Section 59 allows the court to rectify a will if the judge finds that the will does not reflect the will-maker’s intentions because of

(a)an error arising from an accidental slip or omission,
(b)a misunderstanding of the will-maker's instructions, or
(c)a failure to carry out the will-maker's instructions.

The court may consider direct evidence of the will-maker’s intentions, such as the drafting lawyer’s evidence of what the will-maker told the lawyer what she wanted in her will.

When Mary Louise Huber instructed her lawyer to draft her last will, she told her lawyer that she wanted the residue of her estate divided equally among her three sons. The will as drafted provided that her estate was to be payable to her “children.” The will then had the following clause:

"If any of my children are not then living but such child has left children of his who is or are then living, then the portion that such deceased child would have received if he had been living on the 30th day following the date of my death shall instead be divided in equal shares amongst his children who are then living."

The will was dated November 18, 2015, and Ms. Huber passed away March 23, 2018

Ms. Huber had a daughter who passed away in 1986, and her daughter had children. As drafted the will appears to divide the estate into four shares with one share going to Ms. Huber’s daughter’s children.

The lawyer who drafted the will gave evidence that Ms. Huber told her that she wanted to leave her estate to her three sons, and had not advised her that she had a daughter who had passed away.  in an estate-planning questionnaire Ms. Huber completed, she indicated that she only had three children. She told her lawyer that she the only change she wanted to make from her previous will was to change the executor, because her husband, who was her executor, had passed away. Under the previous will, Ms. Huber’s estate would have been divided among her three sons.

Madam Justice Francis granted the order rectifying the will so that the estate would be divided among the three sons. She wrote:

[8]             It is significant, in my view, that paragraph (j) uses the masculine gender in reference to the children of the Will-Maker.  It is also significant that the Will makes specific gifts to named grandchildren but does not include any gifts to the children of the Will-Maker’s predeceased daughter.

She also based her decision on the lawyer’s evidence. She found that based on the questionnaire, the lawyer reasonably understood Ms. Huber’s sons to be her only children. In this case, the error was rectified on the basis that the lawyer had misunderstood the will-maker’s instructions.