Estate Planning

Correcting a Will to No Avail

By Hull and Hull LLP

In a recently reported decision, the Nova Scotia Supreme Court tackled issues of will interpretation and whether a gift in a Will is void for offending public policy as enshrined by provincial Human Rights legislation.

In Re Peach Estate, the testator purported to leave his residence to "an Anglican of Presbyterian..." 

The first issue was whether the word "of" was properly to be read as "or".  The Court, applying the doctrine falsa demonstratio noted that if surplus or inessential parts of a description in a Will are inaccurate, they may be rejected "if the remaining description is sufficiently certain to give the bequests a definite meaning.   If a will describes a certain person or thing with sufficient certainty to enable a court to recognize the person or thing intended by the testator, then the court will overlook any inaccuracy in the rest of the description."  Moreover, "in endeavoring to give effect to the testator's true intention the court may be able to utilize the doctrine by simply ignoring a mistake in the description of a person or property."

The court therefore concluded that "there is no evidence of an "Anglican of Presbyterian", and therefore the use of the conjunctive "of" was in error...the provision should read "Anglican or Presbyterian".

However, the correction was moot.  The restriction of prospective purchasers to only those of certain Christian denominations was found to offend the provisions of the Nova Scotia Human Rights Act.

David Morgan Smith

Full post as published by Toronto Estate Law Blog on June 08, 2010 (boomark / email).