You’ve heard time and again how it’s important to have a Will. We know that it’s something we should probably get around to doing, even if we’re still young, or naively think that we’re going to live forever. We know somewhere in the back of our minds that we won’t, and so having a Last Will and Testament can help clarify our wishes.
Yet having a proper Will is a bit more complicated than that. Yes, it is possible to write your own Will, known as a ‘holographic will,’ that clarifies your wishes. Others may opt to use an online program thinking that they can save a bit in the process. The reality is that while both options can work in theory, neither provides much security for ensuring your wishes stay intact after you are gone.
What happens if someone comes out of the woodwork to challenge your Will? Perhaps someone surfaces out of nowhere, claiming to be a long-lost relative, and believing that they are entitled to a portion of your estate? Is your Will sound enough to deal with a scenario as messy as this one?
It sounds like something out of a soap opera, but it does happen! One recent Ontario court decision, Gorgi v. Ihnatowych, 2023 ONSC 1803, shows how important it is to be clear in your Will, and why working with an estate lawyer can make a world of difference for your loved ones.
The Love Child Resurfaces
When John Ihnatowych died in 2020, his Estate plan seemed fairly simple. The majority of his assets were to be divided between his son, Markian, and his daughter, Ulana, with the remaining 10% (known as the ‘residue’) to be divided between Ulana’s two sons, John’s grandchildren.
However, things got complicated when Alexander Erik de Berner filed a Notice of Objection on behalf of him and his minor children. De Berner claimed to be Mr. Ihnatowych’s love child from an affair that he had had with de Berner’s mother in the mid 1960s. De Berner claimed that he only learned the truth about his parentage as an adult.
De Berner’s claim outlined that even once he learned of his biological father, the two men did not meet in person until 2014, although they had started speaking by telephone a few years prior. He also claimed that Ihnatowych sent him a sizable wedding gift, along with a monetary gift on the birth of his first child, however Ulana and Markian claimed that they were unaware of this potential half-sibling.
As the Executor of her father’s estate, Ulana sought to have two key changes made - that the Court would limit the ‘grandchildren clause’ in her father’s will to specifically the children of her and her brother, Markian, and that any residue payable should also be made payable only to her and Markian. The Court was not asked to determine Mr. de Berner’s parentage, only to clarify Mr. Ihnatowych’s intentions.
How did the Court resolve the dispute? Well, the fact that Mr. Ihnatowych worked with an experienced estate lawyer made all the difference.
The Lawyer’s Records
There are clear reasons why lawyers take copious notes during meetings - both to confirm for the record the guidance that they are providing for their client (especially if the client later acts against that advice), as well as to clarify the instructions that they are receiving from their client. In this case, the lawyer’s notes, as well as his affidavit evidence, were key to providing clarity.
The Court outlined that there are three primary instances where they will step in and rectify the rule: where there is an accidental slip or omission because of a clerical error, where the testator’s (the author’s) intentions have been misunderstood, or where the testator’s intentions have not been carried out. In this case, the Court needed to confirm the testator, Mr. Ihnatowych’s, intentions.
In 2008, Mr. Inhatowych visited a lawyer, Mr. Zarowsky, to formalize his Will. At the time, he had prepared a holographic version which only mentioned his two children, Ulana and Markian, and noted that 10% should be divided between his ‘blood grandchildren.’ He had also provided Power of Attorney documents which, again, only mentioned those two children.
When Mr. Inhatowych met with his lawyer again the following year, Mr. Zarowsky’s notes from the meeting indicated clearly that he only had two children, and the estate was to be divided between them with a portion going to any children they may have when he passed. Mr. Zarowsky swore that Mr. Inhatowych was clear about only Ulana and Markian benefitting from his estate, and at no time did he mention Mr. de Berner or his children.
Mr. Zarowsky acknowledged that the sections on residue and grandchildren did not specifically state Ulana and Markian, however the Court found that when the Will was read as a whole, it was clear that the clauses should only apply to them and their children. The Court ordered that the two clauses in question should be rectified in line with Mr. Ihnatowych’s clear intentions.
The Importance of Clarity
No judge will claim to be a ‘mind reader,’ and courts are usually highly cautious of interpreting an individual’s unknown intentions. If there is ambiguity in something like a Last Will and Testament, and there is no additional guidance from the testator, an individual may issue a successful legal challenge even if the result goes against what were, in fact, the testator’s wishes.
Here, the involvement of the lawyer, and his careful notes, was key. The Court did not need to guess - every piece of evidence, from the deceased’s original handwritten will to his consultation notes with the lawyer, stated his intentions. If he did have a son out of wedlock, he clearly did not intend on leaving him or his family with anything.
The right time to make a Last Will and Testament is anytime! Working with an experienced lawyer can help clarify exactly what you would like to do with your Estate, and who will care for your legacy after you’re gone. Contact our office today.
