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Wills, Estates & Trusts Law - WILLS - Preparation and execution - Undue influence, fraud and mistake - Mistake - Types of mistakes - Drafting errors - Remedy

Thursday, January 19, 2017 @ 7:00 PM  

Appeal by the Trustee of the McLaughlin Estate from an order finding a secondary Will invalid. In 2012, the Testatrix passed away. In 2010, she had executed a primary and secondary Will with instructions to her longtime solicitor. The secondary Will addressed her home. The primary Will addressed the balance of the Estate. Clerical errors resulted in mistakes in the secondary Will. It repeated specific bequests made in the primary Will, included a revocation clause revoking all other previous Wills, including the primary Will, and omitted a residue disposition, such that an intestacy would result. In 2014, a judge ordered rectification of issues with the secondary Will in order to correspond with the Testatrix’s instructions to her solicitor. The order was not appealed. Thereafter, the Estate Trustee applied to remove an objection to appointment filed by the respondents. The application judge, of his own initiative, embarked on an examination of the validity of the secondary Will. The judge ruled that the Will was not valid based on the 2014 judge’s finding the Testatrix had not read or approved the contents of the secondary Will. The Trustee appealed.

HELD: Appeal allowed. It was implicit in the order for rectification of the secondary Will that the Will was valid. The application judge’s finding to the contrary undermined the prior ruling and improperly created an intestacy in circumstances where the evidence supported an opposite conclusion. The judgment was set aside with substitution of an order holding the secondary Will valid. Costs were adjusted accordingly, with the Trustee awarded costs of the appeal on a partial indemnity scale.