Can a Mistake in a Will Be Fixed in Alberta?
Discovering a mistake in a will can be stressful, especially when the error affects who inherits an estate or creates uncertainty during the probate process. The good news is that Alberta law provides a mechanism to correct certain mistakes in a will through a court application known as rectification.
At Wiebe Law, we assist executors, beneficiaries, and family members with applications to rectify wills and obtain probate in Alberta.
What Is Rectification of a Will?
Rectification is a legal process that allows the Court to correct mistakes in a will when the document does not accurately reflect the deceased person's intentions.
Section 39 of Alberta's Wills and Succession Act gives the Court authority to add, delete, or correct words in a will if there is clear and convincing evidence that the will contains a mistake.
The Court may rectify a will where the error resulted from:
An accidental slip, omission, or misdescription; or
A misunderstanding of the testator's instructions by the person who prepared the will; or
A failure by the person preparing the will to properly give effect to the testator's instructions.
Common Examples of Will Rectification
Rectification applications often arise when:
A beneficiary's name is misspelled or incorrectly identified.
A gift was accidentally omitted from the final will.
A drafting lawyer misunderstood the testator's instructions.
A property description is incorrect.
The will contains wording that clearly does not match the testator's intentions.
A clause was mistakenly included or omitted during revisions.
In some cases, rectification may even be available where the testator intended to sign the will but inadvertently failed to do so, provided the Court is satisfied by clear and convincing evidence of that intention.
What Evidence Is Required?
Rectification is not automatic. The applicant must present clear and convincing evidence showing that the will fails to reflect the testator's actual intentions.
Evidence may include:
The drafting lawyer's file.
Notes from meetings with the testator.
Earlier drafts of the will.
Correspondence, emails, or letters.
Affidavit evidence from witnesses.
Other documents demonstrating the testator's intentions.
The stronger the evidence, the greater the likelihood that the Court will grant the application.
How Do You Fix a Mistake in a Will in Alberta?
A mistake in a will cannot simply be corrected by crossing out words or filing a revised copy with the Court after the testator has died.
Instead, an interested party must bring a formal application to the Court under Alberta's Surrogate Rules seeking an order for rectification.
The Court will review the evidence and determine whether the statutory requirements have been met.
If the Court grants the application, it will issue an order specifying the corrections to be made to the will.
Rectification Before Probate
In many cases, the mistake is discovered before probate is obtained.
The usual process is:
Bring a court application seeking rectification of the will.
Obtain a court order correcting the mistake.
Apply for probate of the will.
File the rectification order together with the probate application materials.
The Surrogate Court will then consider the will as rectified by the Court's order.
Addressing the error before probate can prevent delays and reduce the risk of disputes later in the administration of the estate.
Is There a Time Limit?
Yes. Under section 39(3) of the Wills and Succession Act, an application for rectification generally must be made within six months after the grant of probate or administration is issued.
However, the Court has discretion to extend this deadline where it considers it just to do so.
Because limitation issues can become complicated, anyone who discovers a mistake in a will should seek legal advice promptly.
Why Legal Advice Matters
Rectification applications often require detailed affidavit evidence, review of the drafting lawyer's file, and careful compliance with Alberta's Surrogate Rules.
A successful application can preserve the testator's true intentions and prevent costly estate disputes. An unsuccessful application may result in the estate being distributed according to the wording of the will, even if that wording appears to be mistaken.
Need Help Fixing a Mistake in a Will?
If you are an executor, beneficiary, or family member dealing with a possible drafting error in a will, Wiebe Law can help.
We assist clients throughout Alberta with:
Will rectification applications;
Probate applications;
Estate litigation;
Executor advice; and
Surrogate Court matters.
Contact Wiebe Law today to discuss whether a rectification application may be available in your circumstances.
This post is for general information only and is not legal advice. Estate and executor issues are fact-specific. For advice tailored to your specific situation, contact us to book a free consultation.
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