deceased

This application sought the court's opinion and direction on the interpretation and potential rectification of Shirley Cunningham's General and Limited Property Wills.

The core issue was whether Kimberly Cunningham, a grandchild born outside of marriage, should be considered a "child" of Tenny Clark-Drost for the purposes of a trust established in the wills, given an "Exclusion Clause" that defined "children" as not including those born outside marriage.

The applicant, Carrie-Lee Hofman, argued Kimberly was excluded.

The respondent, Kimberly Cunningham, sought rectification, arguing the clause was a drafting error contrary to the testatrix's true intent.

The court found that the drafting solicitor's inclusion of the Exclusion Clause and the use of a beneficiary class instead of specific names constituted a drafting mistake, as it did not align with Shirley's clear instructions to benefit both Carrie-Lee and Kimberly equally.

Rectification was ordered, deleting the problematic clauses from both wills, thereby including Kimberly as a beneficiary.

The applicant, Marilyn Ellen Mihalcin (Sally), sought to amend her pleadings to include an equalization claim against the estate of her deceased husband, Frank Mihalcin, and to extend the six-month limitation period for filing such a claim under the Family Law Act (FLA).

The court applied the three-part test under FLA s. 2(8) for extending time limits: apparent grounds for relief, delay incurred in good faith, and no substantial prejudice.

The court found that the applicant failed to provide sufficient evidentiary basis to demonstrate apparent grounds for relief, as no financial statement was filed to show an entitlement to an equalization payment.

Furthermore, the applicant failed to prove that the delay in formally filing the election was incurred in good faith, citing vague evidence regarding her former solicitor's actions.

While the court agreed that no substantial prejudice would arise, the failure to satisfy the first two criteria, coupled with insufficient grounds for exercising residual judicial discretion, led to the dismissal of the motion.