Can a Will Be Rectified to Protect Grandchildren's Gifts in Ontario?

What happens when a will has a drafting error that leaves property without a named recipient?

When a will is missing a key clause, Ontario courts can step in to fix it — but only if there is clear evidence of what the person who made the will actually intended. In Kentros v. Kentros, 2026 ONCA 546 (CanLII), the Court of Appeal for Ontario upheld a lower court’s decision to rectify a will that was missing a remainderman clause — the part of a will that says who gets property after a life interest ends.

The practical result: grandchildren who were meant to inherit certain properties kept their gifts, even though the will as written did not clearly say so.

What is a remainderman clause and why does it matter?

A remainderman clause names who receives property after a life interest — typically a surviving spouse’s right to use or benefit from property during their lifetime — comes to an end. Without that clause, the property may fall into what lawyers call a partial intestacy, meaning it passes as if there were no will at all.

Ontario courts strongly prefer to avoid intestacy. The legal presumption is that a person who made a will intended to deal with all of their property, so courts will try to interpret or correct a will rather than let part of an estate go undirected. This presumption played a central role in the Court of Appeal’s reasoning here.

Can a court actually rewrite a will after someone has died?

Yes, within limits. Rectification is a legal remedy that allows a court to correct a written document — including a will — when it can be shown that the document does not accurately reflect what the person intended. It is not about substituting the court’s judgment for the testator’s. It is about restoring what the testator actually meant.

In this case, the court found sufficient evidence that the deceased intended the grandchildren to receive the properties after the surviving spouse’s life interest ended. The missing clause was treated as a drafting error, not a deliberate omission. The will was rectified accordingly, and the grandchildren’s gifts were upheld.

What evidence can be used in an Ontario estate dispute involving a deceased person’s intentions?

Evidence about what a deceased person said or intended is subject to special rules in Ontario. Section 13 of the Evidence Act requires that testimony about conversations with a deceased person be corroborated — meaning supported by independent evidence that makes the testimony more likely to be true.

The Court of Appeal confirmed that admissions made against a person’s own interest are not automatically excluded under section 13. It also confirmed that a recording of a conversation, or other reliable independent evidence, can satisfy the corroboration requirement. Courts may also consider limited extrinsic evidence — material outside the will itself — when it is reliable and consistent with the will’s language and the surrounding circumstances. A party who fails to object to such evidence at trial generally cannot raise the objection for the first time on appeal.

Can an estate trustee transfer estate property into a trust to get around a drafting error?

No. The court found that transferring estate properties into an alter ego trust — apparently to exploit a gap created by the drafting error — was a serious breach of fiduciary duty. An estate trustee is required to act in the interests of all beneficiaries, not to take steps that benefit one side by taking advantage of a mistake in the will.

The transfer was declared void from the beginning, and the properties were ordered returned to the estate to be held and distributed according to the rectified will. This is a significant reminder that estate trustees have strict obligations and can face serious legal consequences for self-interested or improper conduct during estate administration.

Practical takeaways for estate beneficiaries and family members

• A missing clause in a will is not necessarily the end of your claim. Ontario courts can rectify or construe a will to honour the testator’s true intentions, especially where there is clear supporting evidence.
• Evidence of the deceased’s intentions matters — gather it early. Recordings, written communications, and other independent materials can satisfy corroboration requirements and strengthen a rectification claim.
• Watch for estate trustee conduct during administration. If a trustee is restructuring assets in a way that seems to benefit one party over others, that may be a breach of fiduciary duty worth challenging.
• Objections to evidence must be raised at trial. Waiting until an appeal to complain about evidence that was admitted without objection will generally not succeed.
• Get legal advice before the estate is distributed. Once assets are transferred out, recovering them can be difficult and expensive — even if a court ultimately orders it.

Estate disputes involving will interpretation, rectification, or trustee misconduct are complex. UL Lawyers provides general information about wills and estates and civil litigation; the appropriate service depends on the facts.

UL Lawyers serves clients across Ontario from its Burlington office. Request a consultation to confirm whether the firm handles your type of matter.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.