Andrew C. McKague

This appeal concerned the rectification of a will.

The Estate Trustee sought to rectify the will of the deceased, John Ihnatowych, to exclude his biological son from a prior relationship and that son's children, arguing John intended to benefit only his children from his marriage and their offspring.

The application judge granted rectification, finding the will did not accurately reflect the testator's instructions to his lawyer.

The appellants (the biological son and his children) appealed, arguing the judge applied an incorrect test for rectification and misassessed the evidence.

The Court of Appeal dismissed the appeal, affirming that the application judge correctly applied the test for will rectification, which permits correction when a testator's instructions are not carried out.

The court distinguished the test for rectification of agreements from that of unilateral wills and found the evidence of the testator's clear instructions to his lawyer was sufficient to support the rectification.

The applicant, Ulana Olha Gorgi, as sole Estate Trustee, sought to rectify the Last Will and Testament of John Ihnatowych to limit the beneficiaries of the residue and grandchildren clauses to his biological children, Ulana and Markian, and their children, thereby excluding Alexander Erik de Berner and his children, who claimed to be the deceased's biological issue and grandchildren.

The court found that the drafting solicitor failed to accurately reflect the testator's clear instructions, which consistently indicated an intent to benefit only Ulana and Markian and their children.

The application for rectification was granted, and the Notice of Objection filed by the de Berner Respondents was removed.

The plaintiff appealed a Master's order requiring her psychological expert to produce his handwritten notes, questionnaires, and answers from his assessment of the plaintiff.

The expert had refused to produce the raw data, claiming it was proprietary.

The Master ordered production on an undertakings and refusals motion without notice to the expert.

The Superior Court allowed the appeal, finding the Master erred in law by ordering relief against a non-party without giving him an opportunity to be heard, which violated the principle of audi alteram partem.

The proper procedure was a motion for production from a non-party under Rule 30.10.

The court varied the order to require production only of documents the expert did not object to producing, leaving the defendants to bring a proper Rule 30.10 motion if they wished to pursue the disputed records.

The plaintiff brought a motion for leave to deliver a jury notice after the close of pleadings and after the action was set down for trial, and to compel the defendants to comply with undertakings given at discovery.

The underlying action involves claims of unpaid wages, false imprisonment, and unsafe working conditions.

The court granted leave to deliver the jury notice, finding that the delay was due to inadvertence and there was no prejudice to the defendants.

The court also ordered the defendants to comply with the outstanding undertakings, finding they had not made 'best efforts' to do so.

No costs were awarded due to the plaintiff's delay in bringing the motion.