In legal matters, a lot can change depending on the language included in, or excluded from, a document such as a lease, contract or a will. Oftentimes, legal disputes arise out of the parties differing interpretations as to the meaning of a specific word or phrase.

In estate litigation disputes, a court may be asked to interpret a testator’s intentions in a will and correct, or add, language in order to ensure it best reflects the testator’s wishes. This process is known as “rectification” of a will and is permitted under Alberta’s Wills and Succession Act. However, since the timely resolution of matters is important, a party only has six months after granting probate or administration of a will to request rectification. The recent case of Leischner v Schafer illustrates how the Court of King’s Bench of Alberta recently approached a request to extend the limitation period for rectification.

Will omits mention of some estate property

In the case of Leischner v Schafer, the testator was the family matriarch who survived her husband following his death in 2014. After his passing, the testator met with her lawyer to update her will. The lawyer’s notes indicated that it was her wish to name her children as beneficiaries of her estate, which contained four primary assets, being a life insurance policy, properties (referred to as NE11 and SW11), and a house (referred to as the “house in Olds”). However, the will did not mention the house in Olds or NE11, instead only referencing SW11 and the insurance policy as assets. The court referred to these two pieces of property together as the “disputed quarter.”

The Court became involved in this matter in order to determine whether or not the disputed quarter should be included in the calculation of the residue of the estate.

Testator leaves estate to three children

The testator had three children, referred to in the decision by their first names as Lori, Bonnie, and Michael. In 2005, Michael was added as a joint tenant to the title for the disputed quarter. However, the testator’s brother and administrator of the estate (“Howard”) told the Court that Michael and his wife were added as joint tenants to help their parents obtain a mortgage. Lori added that no consideration was ever paid to their parents for the property. Following the testator’s death, Michael and his wife remained as the legal title holders for the disputed property.

The will addressed the property referred to as SW11, leaving it to Bonnie and Lori. The will also provided that Michael would be given the right of first refusal if they wished to sell the property. However, the parties were in dispute as to whether or not the disputed quarter should be included in the equalization of the testator’s property – the proceeds of which would be distributed equally amongst the testator’s children. Further, even if the court determined that the disputed quarter should be included in the testator’s property, the Court had to first assess whether it should extend the six-month limitation period under which rectification must occur.

Legislation provides for limitation period extension

The Court began its analysis by acknowledging that while it is able to rectify a will, the limitation period is provided for under the legislation, which also includes a subsection authorizing courts to extend the limitation period for “any terms the Court considers just.”

The Court referenced a 2009 decision from British Columbia given the lack of common law cases in Alberta that addressed this type of situation. In the British Columbia decision, the Court noted that merit, timing, and prejudice must be considered when determining whether to extend such a deadline.

Michael argued that an extension should not be granted for various reasons, arguing that:

  • he would be prejudiced if there was an extension;
  • the home on the disputed quarter had been treated like his family home; and
  • he had made improvements to the home.

Conversely, both Howard and Lori argued that Michael was holding the property in trust for the benefit of the estate and that it was never intended to be his home alone.

Should the court extend the limitation period for the rectification of the will?

The Court looked at the merits of each of the parties’ positions and found that there was an arguable prima facie case for rectification as it was unclear whether the will accurately reflected the testator’s wishes. The Court found evidence to suggest there were errors in the drafting of the will, particularly that the testator had intended to include the disputed property in the estate assets. Based on these findings, the Court determined that this was enough to establish merit.

In looking at timing, the Court noted that there were delays to the process that led to the limitation period lapsing, but that no single party was responsible for these delays, and an extension would not unduly prolong resolution. Because of this, timing was not an issue in the court’s eyes.

Court extends deadline for rectification of will

The last consideration for the Court was prejudice. Michael and his wife had lived in the disputed property since the mid-2000s and had enjoyed undisrupted land use since the testator’s death. Michael claimed that the will should be interpreted based on the words and language contained therein; however, the Court found that the merits of his position could still be argued even if an extension was granted. Therefore, he would not be prejudiced if the extension was granted.

Upon review of the evidence, the Court determined that an extension could be granted. Therefore, Lori was permitted time to submit an application for rectification.

Contact the Skilled Calgary Estate Litigation Lawyers at DBH Law for Representation in Estate Disputes

If you are involved in an Estate dispute, including a dispute over a Will, Power of Attorney, trust, or other estate planning tool, contact the experienced estate litigation team at DBH Law. Our lawyers appreciate the complexities and questions that can arise during estate planning and estate distribution, so we ensure that our clients have a full understanding of the legal process and the options available to them in order to position them for the best possible outcome. To schedule a confidential consultation with one of our wills and estate lawyers, reach out to us online or by phone at (403) 252-9937.