Ihnatowych Estate v. Ihnatowych

Ihnatowych Estate v. Ihnatowych

The Court of Appeal held that the application judge correctly applied established rectification principles (Robinson) and properly admitted and weighed extrinsic evidence (testator's handwritten notes and drafter's notes and admission) to conclude the will did not reflect the testator's instructions; Fairmont Hotels...

Source-derived case information.

Citation
2024 ONCA 142
Parties
Applicant (respondent): Ulana Olha Gorgi in her capacity as Estate Trustee of the Estate of John Ihnatowych; Respondents (appellants*): Markian Alexander Ihnatowych; Alexander Erik de Berner; Darwin de Berner; Parker de Berner; Adrian Tyler Gorgi; James Conner Gorgi; Michael Jayden Gorgi (by their Litigation Guardians and The Children's Lawyer)
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
28 February 2024
Procedural Posture
Civil Wills and Estates / Appeal From Superior Court of Justice (motion Judge)
Outcome
Appeal dismissed; rectification of the will upheld; costs awarded to the respondent
Legal Topics
Rectification, Will Interpretation, Testamentary Freedom, Extrinsic Evidence, Standard of Proof
Source Language
english
Wills and Estates Equity Civil Procedure Rectification Will Interpretation Testamentary Freedom Extrinsic Evidence Standard of Proof

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Parties

Ulana Olha Gorgi in her capacity as Estate Trustee of the Estate of John Ihnatowych

Applicant (respondent)

Markian Alexander Ihnatowych; Alexander Erik de Berner; Darwin de Berner; Parker de Berner; Adrian Tyler Gorgi; James Conner Gorgi; Michael Jayden Gorgi (by their Litigation Guardians and The Children's Lawyer)

Respondents (appellants*)

Procedural Posture

Civil Wills and Estates / Appeal From Superior Court of Justice (motion Judge)

Legal Issues

  1. 1 Whether the will should be rectified to reflect the testator's instructions excluding certain biological descendants
  2. 2 Whether the Fairmont Hotels standard for rectification displaces prior rectification principles in will cases
  3. 3 Admissibility and weight of solicitor's evidence and testator's handwritten notes as extrinsic evidence

Ratio Decidendi

The Court of Appeal held that the application judge correctly applied established rectification principles (Robinson) and properly admitted and weighed extrinsic evidence (testator's handwritten notes and drafter's notes and admission) to conclude the will did not reflect the testator's instructions; Fairmont Hotels did not change the applicable test for unilateral wills and did not require a different outcome; accordingly the rectification order was upheld and the appeal dismissed.

Court Disposition

Appeal dismissed; rectification of the will upheld; costs awarded to the respondent

Orders

  • Appeal dismissed
  • Rectification of the will as ordered by the application judge to reflect the testator's instructions that the estate be distributed to Ulana and Markian and their children only