Verity (Re)

2012 BCSC 650 Verity (Re) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Verity (Re), 2012 BCSC 650 Date: 20120507 Docket: S117631 Registry: Vancouver Between: Joanna Wresniewski, Executor of the will and trustee of the Estate of Beatrice Mable Verity, Deceased Petitioner And Douglas Fedorek, Diane Fedorek Green, Larry Fedorek, Kathleen Fedorek, Beverly Carleton, Donna Holmes, Elizabeth Abrahamson, Penelope Powell, Joan Craig, Morris Piddocke, Margaret McConnell, Mary Ellen David, Gwendolyn Fisher, and Kenneth Fisher Respondents Before: The Honourable Mr. Justice Affleck Corrected Judgment: The text of the judgment was corrected at paragraph [50], where changes were made on June 11, 2012. Reasons for Judgment Counsel for the Petitioner: A.D. Francis Counsel for the Respondents, Douglas Fedorek, Diane Fedorek Green, Larry Fedorek, Kathleen Fedorek: Counsel for the Respondents, Beverly Carleton, Donna Holmes, Elizabeth Abrahamson, Penelope Powell, Joan Craig, Morris Piddocke, Margaret McConnell, Mary Ellen David and Kenneth Fisher Unrepresented Respondent, Gwendolyn Fisher M.E. LeClercq G.W. White Place and Date of Hearing: Vancouver, B.C. April 13, 2012 Place and Date of Judgment: Vancouver, B.C. May 7, 2012 INTRODUCTION [1] The petitioner applies for an order rectifying the last will and testament dated March 18, 2003, of Beatrice Mabel Verity ("the 2003 Will") who died on June 24, 2010. The petitioner is the executrix of the 2003 Will. The testatrix made two codicils to the 2003 Will on November 26, 2007 and October 3, 2009. [2] The testatrix died without issue and was survived by 10 nieces and nephews namely the respondents, Beverly Carleton, Donna Holmes, Elizabeth Abrahamson (the correct spelling is Abrahamsen), Penelope Powell, Joan Craig, Margaret McConnell, Mary Ellen David, Gwendolyn Fisher, Kenneth Boyd Fisher and Morris Piddocke. Two nieces named Doreen Fedorek and Holly Goldsmith predeceased the testatrix. Doreen Fedorek had 4 children who survived the testatrix, namely the respondents, Douglas Fedorek, Diane Fedorek Green, Larry Fedorek and Kathleen Fedorek (hereafter the "Fedorek Respondents"). Holly Goldsmith died apparently without issue. All of the respondents were represented before me except Gwendolyn Fisher, who has taken no part in these proceedings. [3] The petitioner submits the 2003 Will contains drafting errors in sub clauses 3(f) and (g), which it is argued do not reflect the testatrix's instructions for the disposition of the residue of her estate. Those sub clauses, together with the effect of the codicil of November 26, 2007, provide for the division of the residue into halves with one-half to be divided equally among the 10 surviving nieces and nephews and the other half to be divided equally among the Fedorek Respondents. [4] The petitioner submits the instructions of the testatrix to her solicitor for the 2003 Will, as modified by the November 26, 2007 codicil, were to divide the residue into 11 parts with one of those parts to be divided equally among the 4 Fedorek Respondents and the other 10 parts to be divided among the 10 surviving nieces and nephews. The petitioner submits this division would not only be consonant with the instructions of the testatrix but also consonant with the intentions of the testatrix as revealed in statements she made to her nieces and nephews during her lifetime and with the close family relationship of the testatrix with her nieces and nephews as contrasted with the minimal relationship of the testatrix with the Fedorek Respondents. THE LAW [5] The parties agree on the essential principles of law which guide a court in the exercise of its power to rectify a will. That power permits a court to delete words that were mistakenly included in a will, but not to add them. There is no suggestion by the petitioner that words ought to be added to the 2003 Will, but some authorities which discuss the question of whether words may be added are nevertheless useful on the application before me. [6] One of those authorities is Re Ali Estate, 2011 BCSC 537, in which Dardi J. under the heading "Legal Framework", provided a valuable discussion of the principles of law which are engaged by a wills rectification application. Paragraphs 21 to 27 should be quoted in full: 21. The Supreme Court has jurisdiction to sit both as a court of probate and as a court of construction. Notwithstanding that the single court is empowered with dual jurisdictions, historically the court has exercised its probate function and its interpretation or construction function in separate proceedings. In broad terms, when ruling upon the validity of a will, the court sits as a court of probate, and when interpreting a will, it sits as a court of construction. The divided jurisdiction is significant because the powers available to the court depend on which jurisdiction it assumes: Law Reform Commission of British Columbia, Report on Interpretation of Wills, LRC 58 (Victoria, 1982) at 1. 22. The jurisdiction exercised by a court of probate relates to whether the testamentary instrument submitted for probate represents the true last will and testament of a deceased and whether the named personal representative is entitled to administer the estate. In essence, a court of probate focuses on what constitutes the testamentary instrument of the testator and its validity. The inquiry pertaining to the validity of the testamentary document encompasses the issues of the capacity and the volition of the testator and whether the testator duly executed the testamentary document with knowledge and approval of its contents. 23. On the other hand, in exercising jurisdiction as a court of construction, the court is concerned with ascertaining the meaning of the testamentary documents that have been approved by the court in the exercise of its probate jurisdiction. It is axiomatic that court must interpret or construe a will in the form in which it has been admitted to probate. 24. In probate hearings, the court, in determining whether or not the document before it is truly the testator's will, is permitted to consider extrinsic evidence, including direct evidence as to the testator's intentions. That evidence may include copies of earlier wills and codicils, prior drafts of the will, and the notes of the solicitor who prepared the will. In contrast, the scope of admissible evidence is generally more constrained in a construction hearing. In that instance, a court may only consider the words of the will and if, applying the subjective approach, the evidence of the surrounding circumstances known to the testator at the time the will was made. Except in very restricted circumstances (such as equivocation), the court is not permitted to review direct evidence of the testator's intentions on a construction application: British Columbia Law Institute, "Wills, Estates and Succession: A Modern Legal Framework," in B.C.L.I. Report No. 45 (B.C., 2006) at 37. 25. It is in the context of these general principles that I next address the petitioner's application for rectification. 26. At the outset, it is important to observe that the equitable remedy of rectification, as developed to permit a court to correct errors in contracts or other written documents, does not apply to wills: British Columbia Law Institute, "Wills, Estates and Succession: A Modern Legal Framework" at 36. I also note parenthetically that in British Columbia there is currently no legislation in force which confers powers on the court to rectify a will. 27. However, the court, in exercising its probate jurisdiction, does have a limited power to rectify a mistake in a will where the language of the will fails to express the testator's actual intentions. A will is only valid to the extent a testator knew and approved of its contents. As a constituent element of establishing the validity of a will, the court must be satisfied that the testator knew and approved of its contents. It is well established on the authorities that before a will is admitted to probate, the court may, in the exercise of its probate jurisdiction, delete words from a will that have been included without the testator's requisite knowledge and approval: Alexander Estate v. Adams (1998), 51 B.C.L.R. (3d) 333, 20 E.T.R. (2d) 294 (S.C.) [Alexander Estate]; and Clark v. Nash (1987), 61 D.L.R. (4th) 409, 34 E.T.R. 174 (B.C.C.A.) [Clark]. [7] In Alexander Estate v. Adams (1998), 20 E.T.R. 394, Burnyeat J., of this Court, at paras. 19 and 20 wrote the following, under the heading "Burden of Proof in Mistake": A Court of Probate can review evidence which is relevant to the question of whether or not words included in the Will have been included without the knowledge and approval of the Testatrix. That evidence may include copies of earlier Wills and Codicils prior drafts of the particular Will, and as well as the notes and recollections of the solicitor preparing the Will. In this case, I have reviewed the two Wills, the two Codicils, and the affidavit of the solicitor who prepared the two Codicils and the 1996 Will in order to ascertain what instructions were provided by the testatrix. ... The following passage from Williams, Mortimer and Summcks, supra, sets out the burden of proof: ... if the testator has duly executed his will the presumption is that he knew and approved of all its contents, and that presumption becomes very grave and a strong one and only to be rebutted by the clearest evidence in cases where the will was read over to the to testator. It is however, going too far to say that it must established beyond all doubt that the words which a party seeks to have omitted did not form part of the testator's will. Furthermore, the reading over must be a proper one. But where the will was not read over to the testator and the mistake is made in circumstances in which the court may omit words or dispositions, the mistake may be established on a balance of probabilities. (at p.167) [8] In Vout v. Hay, [1995] 2 S.C.R. 876, the court heard an appeal in which it was alleged there were "suspicious circumstances" surrounding the execution of a will. At para. 26, Sopinka J. for the court observed: ...Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder, is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [9] The "propounders" of the 2003 Will are the Fedorek respondents. [10] The jurisdiction of the English probate court to rectify a will was modified and enlarged by the Administration of Justice Act, 1982. There is no similar legislation in British Columbia, but English authority on rectification of wills, prior to the coming into force of the English statute on January 1, 1983, continues to be persuasive in British Columbia. [11] In Re Morris (deceased) [1970] 1 All E.R. 1057 a testatrix executed a will making a pecuniary legacy in sub clause 7[iv]. The testatrix later instructed her solicitor to prepare a codicil altering the provisions of sub clause 7[iv] but instead the solicitor mistakenly prepared a codicil which revoked all of clause 7, thereby depriving the beneficiary of the legacy. The testatrix took the codicil to her bank to execute it, "but there was no discussion about its meaning and effect". The learned judge nevertheless held "the testatrix read it in the sense of casting her eye over it". [12] The learned judge in Re Morris addressed the history of the relevant law of England and referred to Guardhouse v. Blackburn, (1866) L.R. 1 P. & D. 109 [1861-73] All E.R. 680, which articulated a pronounced mid-Victorian reluctance to rectify a will, even if it could be demonstrated that it did not actually conform with the testator's wishes. Lord Penzance laid down what was characterized in Re Morris as "absolute rules" one of which was that "the fact that the Will had been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof". [13] The learned judge in Re Morris observed there must have been good reason for the court in Guardhouse v. Blackburn "to fetter its own power to get at the true facts. But has not the more modern trend in many fields been to strike such fetters off, so that the court can make the best use of all materials available to ascertain the truth?" and went on to quote with approval from an earlier English case in which it was held that the probate court on a rectification application is: ...to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the Will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law. [14] I should note that while the law of England may not raise a presumption of knowledge and approval if a will is read by a testator, but the law of British Columbia, as articulated in Vout v. Hay supra, appears to have retained a rebuttable presumption that a will reflects the intentions of the testator if it was read to or by the testator at the time of execution. [15] In Re Morris supra the learned judge concluded: In my judgment, wherever the line is drawn, this case on its facts falls into the category where the court has power to do what it can by omission. The introduction of the words 'Clause 7' instead of 'Clause 7(iv)' was per incuriam. The solicitor's mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix's instructions and intentions were, and what he did was outside the scope of his authority. And he did it, of course, without knowing and approving what he himself was doing. How can one impute to the principal the agent's knowledge and approval which the agent himself has not got? Accordingly, I hold that the testatrix was not bound by this mistake of the draftsman which was never brought to her notice. The discrepancy between her instructions and what was in the codicil was to all intents and purposes total and was never within her cognisance. THE EVIDENCE [16] The petitioner is a solicitor with the firm of the late solicitor for the testatrix and she deposes that she reviewed four "estate planning files" of the testatrix found in the office of the late solicitor. The petitioner's evidence is that the files reveal the late solicitor opened a file in January 2001, which contains the following: (a) An unsigned will of a March 18, 1999 which distributes the residue of the testatrix's estate by dividing it into 11 shares with 10 shares to be divided among surviving nephews and nieces and one among the Fedorek Respondents; (b) A copy of a codicil dated March 18, 1999 making bequests of certain personal property; (c) A two page letter in the hand of the testatrix with the names and addresses of intended beneficiaries and the note "niece Doreen Fedorek deceased January 1984. Her share to be divided among her four offspring". The names and addresses of the Fedorek Respondents are then listed; (d) Handwritten notes which the petitioner identified as those of the late solicitor for the testatrix which begin "CW Ms. Verity" and which say "please do a new will" and a paragraph which reads "Residual Clause - put in from will but change addresses as needed - see list attached". These notes have a date of January 8, 2001; (e) A draft of the will of the testatrix dated January 15, 2001 with handwritten notations. It is clear to me the notes are in the hand of the testatrix. Clause 3(g) instructs her executor to divide "the residue of my estate among the following of my nieces and nephews, who shall be living at the date of my death...". There is then a list of 10 names and addresses of nephews and nieces all of whom, except for Holly Goldsmith, are the respondents to the petition and then the following: "my trustee shall divide the remaining one share of the residue of my estate to such of the following (being the children of my deceased niece Doreen Fedorek) as are living at my death (and if more than one than equally between them)..." And there then follows a list of the names and addresses of the Fedorek Respondents. [17] The petitioner disposes the testatrix executed a new will on January 15, 2001, which divided the residue of her estate in accordance with the draft just mentioned. [18] The petitioner also refers in her affidavit to "the 2003 Will File". I will describe the contents of that file as follows: (a) Five pages of notes dated February 25, 2003 in the hand of the solicitor beginning "CW Beatrice Verity". Four addresses are noted and on the second page, the solicitor wrote "Please do new will - using old one as precedent". On page 5 there is a note which reads "All of 3(g) is okay except change addresses as indicated". That is the sub clause in the earlier wills which provided for the distribution of the residue by dividing it into 11 shares, of which 10 went to nieces and nephews with the remaining share divided equally among the Fedorek Respondents; (b) The revoked 2001 will was found in the file torn in half; (c) Notes in the handwriting of the testatrix which begin "Changes & Addition to Codicil" which contained nothing of relevance for the present application; (d) Copies of certain pages from the 2001 will with handwritten notations apparently in the hand of someone other than the testatrix. Sub clause 3(h) is crossed out. It reads "I DIRECT MY NIECE HOLLY GOLDSMITH before taking any share in the residue of my estate to bring into account hotchpot WITHOUT INTEREST THE SUM OF $10,000 WHICH I ADVANCED TO HER IN 1989." Holly Goldsmith had died in January 2003. (e) A typed draft of the 2003 Will, with handwriting apparently in the hand of the late solicitor. Sub clause 3(f) of the draft reads as follows: "To divide the residue of my estate in two (2) equal shares and to divide one said share of the residue of my estate equally among those of the following of my nieces and nephews, who shall survive me for a period of thirty (30) days...". There then appears a list of 10 nieces and nephews including Holly Goldsmith. (f) Sub clause 3(g) as typed reads: "to pay or transfer one (1) said share of the residue of my estate equally among those of the following (being the children of my deceased niece, DOREEN FEDOREK) who shall survive me for a period of thirty (30) days...". There then follows a list of the names and addresses of the Fedorek Respondents. (g) In sub clause 3(g), in a hand other than that of the testatrix, the phrase "pay or transfer" has been struck out and replaced by hand with the word "divide". The phrase in parenthesis "(being the children of my deceased niece DOREEN FEDOREK)" has been struck out and replaced by hand with the phrase "great nieces and nephews (being)..." (h) Sub clause 3(h) provides for a per stirpes distribution among nieces and nephews as follows: "Should any of my aforesaid nieces or nephews mentioned in sub clause (g) predecease me or die before becoming entitled to his or her share in my estate, I DIRECT that the child or children of such predeceasing niece or nephew shall be entitled to equal shares, to the share which his, or her or their parents would have been entitled PROVIDED FURTHER that should any niece or nephew predecease me and leave no children him or her surviving, I DIRECT my Trustee to divide such predeceasing nieces or nephews share of my estate equally among my surviving nieces or nephews". [19] The testatrix executed the 2003 Will on March 18. It was not witnessed by the solicitor who drew it but by persons identified as Nicky Burian "Legal Secretary" and Susan Johal "Office Manager". I have no evidence from either witness about the circumstances of the execution of the will. There is sufficient evidence about the character of the testatrix for me to conclude she was a careful, meticulous and conscientious person. Given the testatrix's character it might be reasonable to infer that she at least cast her eye over the 2003 Will before executing it but there is no evidence she actually read it. There is certainly nothing in the evidence on which to find the "reading over was a proper one" as Burnyeat J in Re Alexander Estate supra found is necessary to create a presumption of knowledge and approval. [20] The 2003 Will like the draft provides in sub clause 3(f) that the residue of the estate is to be divided into two shares, one of which is to be divided equally among 9 nephews and nieces and sub clause 3(g) provides that the other half share is to be divided equally among the Fedorek Respondents. [21] The petitioner gives evidence that on October 11, 2007 the testatrix gave instructions to her solicitor to prepare a codicil to the 2003 Will. A handwritten note on stationery with the letterhead "Mrs. Beatrice M. Verity" provides an address for Gwendolyn Fisher. There is a note in the hand of the testatrix's late solicitor dated "07/10/11" which begins "CW Beatrice Mabel Verity". The solicitor writes that he is instructed to "pls. do codicil to this will" Then in regard to sub clause 3(f) he wrote "delete 3(f) & do new 3(f) with a 3f (x)=Gwendolyn Fisher...i.e. so she shares = 'lly with other 9 in one of the two shares in the residue". The expression "='lly" must have been the solicitor's shorthand for the word "equally". [22] A codicil was executed by the testatrix on November 26, 2007 which in clause 1 made an alteration irrelevant to this application and then in clause 2 provided "I hereby add the following beneficiary to clause 3.(f) as clause 3.(f)(x), of my said Last Will and Testament: 3.(f)(x) GWENDOLYN FISHER, of 441 Murray Crescent, Kelowna, British Columbia, V1X 7P7. [23] The codicil is witnessed by the solicitor and by a legal assistant who is not one of those who witnessed the 2003 Will. [24] The solicitor for the testatrix died in August 2009 and in October 2009 the testatrix made a second codicil changing the executor from her late solicitor to the petitioner. [25] As well as the affidavit of the petitioner, I have affidavits of each of the Fedorek respondents and six affidavits from or on behalf of the other respondents except Gwendolyn Fisher. The affidavits of the Fedorek Respondents were all made on December 15, 2011 and the others on January 23, 2012. I will first discuss the Fedorek Respondents Affidavits. [26] Douglas Fedorek, as do all of the Fedorek Respondents, refers to the testatrix as "Aunt Bea". He speaks of a "childhood filled with memories of letters from and special visits that Aunt Bea made to our farm". He agrees with the affidavits of the respondents, Larry Fedorek and Kathleen Fedorek. [27] Larry Fedorek is an electrical engineering consultant. He is "involved in contract drafting and revision" and deposes that a request was made by the Fedorek Respondents for an "Affidavit of Draftsmen" but [they] were advised the testatrix's solicitor had died and the assistant involved in the drafting of Aunt Bea's will was no longer at the firm". Larry Fedorek's affidavit deposes to few relevant facts and largely consists of an argument supporting the 2003 Will. An argument which calls itself an affidavit is not helpful. [28] The respondent Diana Green, who is named on the style of cause as Diane Fedorek Green, like Douglas Fedorek deposes she agrees with the affidavits of Larry Fedorek and Kathleen Fedorek. Apart from her name, occupation, city and province, she repeats Douglas Fedorek's affidavit word for word and adds nothing further to the evidence. [29] Kathleen Fedorek gives a family tree and deposes that from inquiries from "within our family" and from internet searches undertaken by "our counsel" all of the testatrix's beneficiaries are descended from James Boyd Fisher and Rosanna Mabel Mitchell. She deposes to the "special and close relationship" between her late mother Doreen Fedorek of whom the testatrix was very fond. Her evidence is that Doreen Fedorek and the testatrix wrote to each other. Like Douglas Fedorek and Diana Green she says "our childhood is filled with memories of letters from and special visits that Aunt Bea made to our farm". She also deposes "that when our mother was ill and prior to her passing, we believed that Aunt Bea made a special trip to Alberta to visit our mother". [30] I accept the testatrix and her niece, Doreen Fedorek, were very fond of each other. That fondness is apparent from the fact the testatrix decided to make provision for Doreen Fedorek's children in her 2003 Will. She made no direct provision for any other great nieces or nephews. [31] I will now discuss the evidence of the nieces and nephews who are the remaining respondents. [32] Linda Piddocke is the wife of the respondent Morris Piddocke. Mr. Piddocke did not make an affidavit. Linda Piddocke deposes that the testatrix's husband died in 1984. Ms. Piddocke and her husband visited the testatrix in Victoria "but mainly we relied on her to come to Kelowna". In 2000, the testatrix moved to Kelowna. The testatrix "loved to entertain" and we spent "many great evenings together. Auntie Bea was a part of our family gatherings: Christmas, Easter, birthdays, weddings, anniversaries, graduations, baby showers and BBQs....I became very involved in her day to day activities. Her health was declining and she had suffered medical setbacks. I would stop by and visit almost daily, run errands, do shopping and deliver Auntie Bea to various appointments...she relied more and more on myself and her niece Pennie. We helped Auntie Bea with simple tasks, feeding, clothing, and caring for her because she was unable to do these things for herself anymore...Auntie Bea had a close relationship with all of her siblings and many of their children...I am not aware of any personal contact with Auntie Bea and the children of Doreen Fedorek after Doreen's death...I have asked all ten of the other respondents and each of them also confirm that they too are unaware of any personal contact (visits or telephone calls) between the children of Doreen and Auntie Bea in the last 28 years (with one exception). Kenneth Fisher, (who is the brother of Doreen) and Beverly Carleton (who is the sister of Doreen) confirmed that the only contact happened in 1997 at the funeral of their mother (who was Auntie Bea's sister-in-law)." [33] Linda Piddocke deposes that she was "present at the signing of the second codicil. By this time, Auntie Bea's eyesight was extremely poor and she was not able to sit for a long period of time. The will was not there when she signed the codicil... [s]he would not have been able to read the will and it was not read to her". [34] The respondent, Beverly Carleton, deposes that all of the nieces and nephews of the testatrix called her "Auntie" not "Aunt". At the age of 21 she flew to Montreal to stay with the testatrix for two weeks where she met Norman Verity, the testatrix's "husband to be". The testatrix was married in 1969 and in the late 1970s moved to Victoria. She deposes that the testatrix's husband died in 1984 which was the same year as Doreen Fedorek died. Beverly Carleton goes on to say that from the date of Doreen Fedorek's death until the present "to my knowledge my nieces and nephews (her children the four Fedorek Respondents) never even sent Bea a Christmas card or birthday card or even a letter or a phone call". [35] Beverly Carleton says that she took holidays with the testatrix in Palm Springs for four years in a row after the testatrix's husband died and went on a sea cruise with her in 1992. [36] The testatrix had two hip replacements and on both occasions took time away from work and Beverly Carleton went to Victoria to help her overcome the effects of this surgery. [37] Beverly Carleton gives evidence that she talked to the testatrix frequently on the telephone discussing her will on occasion. The testatrix discussed redoing her will after the death of Holly Goldsmith "because she wanted to remove Holly as beneficiary in order to cancel out Holly's debt to her without the rest of the nieces and nephews having knowledge of said debt". The testatrix also told Beverly Carleton that "although she was removing Holly's name, she would never remove my sister's name as she wanted Doreen's four children to receive Doreen's share". [38] In the respondent Donna Holmes' affidavit, she deposes she accompanied the testatrix on two cruises in November 1996 and January 1998 and on both occasions the testatrix spoke about her investments. She also received a telephone call from the testatrix in October 2007 in which the testatrix said that she had been thinking seriously and "since she was leaving all her other nieces and nephews an equal share of her estate she had decided to include Gwen." She said that she had decided to "let bygones be bygones (Auntie Bea's actual words) this codicil was added on November 26, 2007. Now everything was in order and she hoped there would be no more tragedies before she passed on". [39] The respondent, Penelope Powell deposes that the testatrix "told all of us since Doreen predeceased her, Dot's share would go to her four children." She describes the testatrix as "a very meticulous, impeccable woman. Nothing was done without considerable thought, in each case". There "were nieces and great-nieces that spent time with her and did many chores for her and whom she constantly thanked, praised and appreciated. These are the great-nieces she would have thought of, not the Fedoreks whom she never even mentioned in the past 30 years". [40] The respondent, Elizabeth Abrahamsen, deposes to the following at paras. 4 to 9: When my husband Abe became very ill in October 1997 with acute pancreatitis and was in the hospital in intensive care in Kelowna - I drove back and forth each day from October 28th 1997 until February 1st 1998. Auntie Bea phoned me every few days from the 1st of November 1997, until the end of January 1998, some days she left a message on the answering machine giving me encouragement to keep my boots on and to keep trucking down the road, telling me to never give up and that she loved me, other times when she phoned I was still home or had just gotten home and we got to share a few words, but always she was encouraging me to keep the faith, keep my boots on and believe. Her words of encouragement, support, and concern made ME feel very special. To have her take the time making sure I was still able to cope with the everyday activities of life was a gift to me from Auntie Bea. Auntie Bea told me that she wanted each of us (nieces and nephews) to "share" equally in her estate. In my view, if any families are deserving of "more" it would be the Morris Piddocke family and the Pennie Powell family. Each was there for Auntie Bea when she moved back to Kelowna. Pennies' family and Morris's family were always doing things for Auntie Bea or taking her to her appointments. I observed that Linda Piddocke was there for banking, washing her cloths, picking up items at her request, I don't think a day went by that either Linda or Pennie were not doing something for Auntie Bea. [41] The affidavit of the respondent, Joan Craig, reads in part as follows at paras. 3 to 5: We all felt special, she never forgot our birthdays or Christmas, always a card and very often a phone call too. Personally, I travelled with Auntie Bea and we corresponded regularly by letter and telephone. We remembered her on special occasions, especially her birthday- with flowers, little gifts, phone calls and when possible, visits. Auntie Bea regularly attended my home and those of my siblings for visits and meals. During a family re-union held in Kelowna in 2000, I strongly suggested to Auntie Bea that she should move back to Kelowna ("to her roots and Briar's Patch") [a family nice name]. After her husband Norm's death in 1984 she had continued to live in Victoria where she had friends and enjoyed the games of bridge and her golfing. Since Auntie Bea was close to 80 years of age, my sisters and I felt she should be closer to family for support. To our pleasure she consented, sold her condo in Victoria and purchased a condo in Kelowna at the Wedgewood. She would invite us for meals in the "Wedgewood" dining room and she truly enjoyed the short time she was able to live there. In 2002 after a series of medical issues, Auntie Bea agreed to move into an assisted living facility (Sun Pointe). My sister Pennie and my sister-in-law Linda Piddocke organized her move and ensured her comfort in her new setting. [42] The petitioner applies for an order to rectify the 2003 Will, as amended by the two codicils, by deleting certain words so that the 2003 Will would divide the residue in the same manner as the 1999 Will and the 2001 Will. The Fedorek Respondents resist any rectification. I will describe and briefly comment on each of their arguments as follows: (a) It is said the 2003 Will is internally consistent and unambiguous. I do not consider this to be a persuasive argument. Grammatical consistency is not necessarily an indication the drafter did not either misapprehend his instructions or make a drafting error. Grammatical consistency, if it was the test, would have precluded rectification in Re Morris supra. (b) The Fedorek Respondents submit the nieces and nephews who support the petition do so because their share in the residue of the estate will increase substantially if the 2003 Will is rectified in the manner they propose. I agree that may correctly describe the motivation, at least in part, of the nieces and nephews, but cannot preclude rectification if the facts and the law lead to that conclusion; (c) It is submitted the quality of the evidence must be such as to make it "abundantly clear that a drafting error occurred". I agree with this proposition and it points to the central question that I must decide; (d) It is said to be "common ground" that the earlier wills of 1999 and 2001 divided the residue into 11 shares with one share to be further divided among the Fedorek Respondents. This is incontrovertible and in my view, assists the petitioner; (e) It is argued that it is "not substantially clear" that the testatrix did not give instructions to her solicitor to make the change reflected in the 2003 Will. In my view, none of the evidence about what the testatrix said in her lifetime even hints at an intention of the testatrix to make a will substantially favouring the Fedorek Respondents over her nieces and nephews. It is true the late solicitor's notes are some evidence of that intention but I consider them to be inconsistent with other compelling evidence to the contrary; (f) The Fedorek Respondents say they "do not rely upon the relationship to assert that there is no mistake in the [2003] Will; they assert that there is no mistake in the will because there is no abundantly clear evidence that there is a mistake". In my view the relationship of the testatrix to her nieces and nephews and the lack of a similar close relationship of the Fedorek Respondents is important evidence. [43] The evidence clearly demonstrates the relationship between the testatrix and her nieces and nephews was very close. They were in frequent contact over many years and the testatrix relied on them as she grew older. It is striking that none of the Fedorek Respondents deny the evidence of Linda Piddocke that there was no personal contact between them and the testatrix over the last 28 years of her life. Nor do any of the Fedorek Respondents deny the evidence of Beverly Carleton that none of them sent a card, letter or made a phone call over many years. Joan Craig's evidence is that the testatrix never forgot her nieces and nephews birthdays, nor failed to send Christmas greetings: "always a card and very often a phone call to". No evidence of any such contact is given by any of the Fedorek Respondents. [44] Douglas Fedorek, Kathleen Fedorek and Diana Green each say their childhood was filled with memories of letters and visits from the testatrix but none of the Fedorek Respondents speak of any contact beyond childhood. I conclude there was little contact between the Fedorek Respondents and the testatrix after Doreen Fedorek died in 1984. [45] I am satisfied that, even if there was evidence that testatrix had actually read the 2003 Will, the presumption the testatrix knew and approved its contents has been rebutted. [46] I reached this conclusion from a consideration of the testatrix's close relationship with her nieces and nephews and also by considering the persistent pattern of the testatrix's intentions, as reflected in testamentary documents prior to the making of the 2003 Will which favour her nieces and nephews over the children of her late niece Doreen Fedorek. I find the testatrix did not know and approve the contents of the 2003 Will and I find her late solicitor either mistook her instructions, which I believe is unlikely, or more likely made an error in drafting the 2003 Will. [47] The Fedorek Respondents argue the authorities suggest the courts have been willing to rectify a will by deleting only a small number of words and not the extensive deletions proposed by the petitioner. I do not agree there is in principle any impediment to a rectification which entails a deletion of numerous words if to leave them in the will would confound the intentions of the testatrix. In Barylak v. Figol, [1995] O.J. No. 3623 (Ont. Gen. Div.), 1995 CarswellOnt 829, Madam Justice Greer of the Ontario Court o7f Justice (General Division) held that "[t]he court may strike out a clause, or a single word or a paragraph, depending on the extent of the mistake". [48] In my view, once the court has concluded there has been a mistake, there can be no reason not to delete all words, no matter how many there are, which would perpetuate it. [49] The Fedorek Respondents each point out "that a person is free to change her mind and change her will". That is correct and the testatrix made several wills which were not identical. There is, however, no evidence whatsoever that she intended to make the radical change to her will in 2003 that the Fedorek Respondents urge on me was consistent with her intentions. [50] My order is that the 2003 Will shall be rectified as follows: a) the words that I have struck out shall be deleted from clause 3(f): (f) To divide the residue of my estate into two (2) equal shares and to divide one said share of the residue of my estate equally among those of the following of my nieces and nephews, who shall survive me for a period of thirty (30) days: (i) BEVERLY CARLETON, of 203-518 West 14th Avenue, Vancouver, British Columbia, V5Z 4N5; (ii) KENNETH BOYD FISHER, of 22379-49A Avenue, Langley, British Columbia, V2Z 1M1; (iii) DONNA HOLMES, of #60-3900 27th Avenue, Vernon, British Columbia, V1T 9E6; (iv) ELIZABETH ABRAHAMSON, of 3410-20th Avenue, Vernon, British Columbia; (v) PENELOPE POWELL, of 3889 Casorso Road, Kelowna British Columbia, V1W 4R7; (vi) JOAN CRAIG, of 178-7841 Highway 97, Kelowna, British Columbia, V4V 1E7; (vii) MORRIS PIDDOCKE, of 550 Mugford Road, Kelowna, British Columbia, V1X 2E7; (viii) MARGARET MCCONNELL, of C. 21, S. 2, SS #1, Houston, British Columbia, V0J 1Z0; and (ix) MARY ELLEN DAVID, of 10105-106th Avenue, Grande Prairie, b) the words that I have struck out shall be deleted from clause 3(g): (g) To divide the remaining one (1) said share of the residue of my estate equally among those of the following great nieces and nephews (being the children of my deceased niece, DOREEN FEDOREK) who shall survive me for a period of thirty (30) days: (i) DOUGLAS FEDOREK, of Box 252, Alberta Beach, Alberta, T0E 0A0; (ii) DIANA FEDOREK GREEN, of 933 Ormsby Wind, Edmonton, Alberta, T5P 6A9; (iii) LARRY FEDOREK, of Box 2816, Stoney Plain, Alberta, T7Z 1Y3; and (iv) KATHLEEN FEDOREK, of Box 130, Alberta Beach, Alberta, T0E 0A0. c) the clause 3(h) will be deleted in its entirety. [51] The parties may speak to costs. "Affleck J." _______________________________ The Honourable Mr. Justice Affleck