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.
