A will is intended to provide clear instructions about the distribution of a person’s property after death. But what happens when an important clause is missing?
This issue was considered in Kentros v. Kentros, 2026 ONCA 546. This case is a useful reminder of the difficulties that can arise when a will does not accurately reflect a testator’s intentions and raises important questions about the limits of a court’s ability to correct a will after it has been probated.
Facts of the Case
Eftychia (“Effie”) Kentros died in March 2017. She was survived by her husband, Manthos, and their children, including her daughter Aleka, who had two children, Matteo and Sofia.
Effie and Manthos had executed mirror wills in 2012. Later, in 2017, Effie executed a new will. The new will dealt specifically with two properties in Fort Erie.
The will gave Manthos a life interest in the properties. It then provided that, if Manthos did not survive Effie by 30 days, the properties would pass to Effie’s grandchildren, Matteo and Sofia.
The missing clause in this case was what would happen if Manthos did survive Effie by more than 30 days. The will did not say.
The drafting solicitor, Mr. Hurren, later acknowledged the error. He confirmed that he had inadvertently failed to include a “remainderman clause” addressing what would happen to the properties after Manthos’s life interest ended. In other words, the will did not say who would ultimately receive the properties once Manthos died.
That omission became significant after Effie’s death. Manthos obtained a Certificate of Appointment of Estate Trustee with a Will, and, in 2019, transferred the two properties into an alter ego trust that he had established.
The issue presented before the court was: What did Effie actually intend to happen to these properties?
What Does a Court Do When a Will Contains a Drafting Mistake?
When interpreting a will, the court’s task is to determine the testator’s intention by considering the language of the will in the circumstances that existed when it was made. This is often referred to as the “armchair rule.”
Ontario courts can, in appropriate circumstances, correct errors or omissions in a will so that the document gives effect to the testator’s actual intention. But there is an important limit: a court is not permitted simply to rewrite a will because it thinks a different disposition would be preferable.
In Kentros, the application judge concluded that there was “clear, convincing and cogent evidence” that Effie intended the Fort Erie properties to pass to Matteo and Sofia after Manthos’ life interest ended. The judge therefore ordered that the will be rectified by adding a “remainderman” clause, providing for the properties to pass to the grandchildren upon the termination of Manthos’ life interest.
Manthos’ position was that the will did not need to be rectified. Instead, Manthos argued that, because he had survived Effie by more than 30 days, he became entitled to the properties as part of the residue of her estate. The Court of Appeal disagreed with this argument.
Rectification or Construction?
Kentros is particularly interesting within the discussion of missing clauses because the Court of Appeal identified the overarching uncertainty in Ontario law concerning the remedial powers of a court after a will has already been probated.
Interpreting this issue involves understanding the distinction between a court of probate and a court of construction.
A court of probate determines what document constitutes the deceased’s will. On the other hand, a court of construction determines the meaning of the language in a will that has already been probated.
That distinction mattered in Kentros because Manthos had already obtained a Certificate of Appointment of Estate Trustee with a Will. No party was asking the court to revoke the certificate or to declare Effie’s will invalid. The application judge was therefore acting as a court of construction.
The Court of Appeal acknowledged “lingering uncertainty” in Ontario regarding the scope of a court of construction’s remedial powers. While some authorities permit courts to add or delete words from a will in appropriate circumstances, others emphasize the more limited interpretive function of a court of construction.
The Court noted that this area of Ontario law has been criticized for failing to provide clear guidance. However, the Court did not need to resolve that issue in order to decide Kentros.
Why? Because, in the Court’s view, the will could be interpreted to achieve the same result without actually adding words to the will.
The existing language giving the Fort Erie properties to Matteo and Sofia if Manthos did not survive Effie by 30 days could, in the circumstances, be understood as expressing Effie’s intention that the grandchildren receive the properties when Manthos’ life interest ended. The Court therefore concluded that the application judge’s interpretation was available to him in his role as a court of construction.
The Court of Appeal therefore upheld the result, while recognizing that the precise scope of a court’s power to “rectify” a probated will remains unsettled.
The Drafting Solicitor’s Evidence Was Significant
Another interesting feature of Kentros was the evidence used to determine Effie’s intentions.
Courts are generally cautious about relying on extrinsic evidence to determine a testator’s intention. However, exceptions may apply where there is an ambiguity or where the drafting solicitor acknowledges an error and can provide evidence about the testator’s instructions.
Here, the drafting solicitor’s admission was particularly significant. He expressly acknowledged that the will inadvertently omitted the provision dealing with the remainder of the properties after Manthos’ death. The Court also upheld the application judge’s consideration of admissions against interest made by members of the Kentros family. Taken together with the language of the will and the surrounding circumstances, the evidence supported the conclusion that Effie did not intend for the properties simply to fall into the residue of her estate and ultimately pass to Manthos.
An Estate Trustee Cannot Take Advantage of the Missing Clause
The case also has an important lesson for estate trustees.
Manthos was not only Effie’s surviving spouse but was also the estate trustee of her estate.
The application judge found that Manthos breached his fiduciary duty by taking advantage of the drafting error and transferring the Fort Erie properties to the alter ego trust. The Court of Appeal agreed.
The key point is simple: an estate trustee cannot treat an ambiguity in a will as an opportunity to benefit personally from estate property.
Manthos’ transfer of the properties to the trust did not simply preserve the grandchildren’s interests. He retained significant powers over the trust, including the ability to revoke it and to encumber or sell the properties. The Court therefore upheld the order declaring the transfer of the properties to the trust void and requiring them to be returned to the estate to be administered in accordance with Effie’s will as properly construed.
This is an important reminder that an estate trustee’s responsibilities are different from those of a beneficiary. An estate trustee must act in the interests of the estate and the beneficiaries. Where a drafting error creates uncertainty about who is entitled to estate property, the trustee cannot simply choose the interpretation that gives them the greatest personal benefit.
Conclusion
Kentros ultimately has a relatively straightforward outcome: the Court found that Effie intended her grandchildren to receive the Fort Erie properties after Manthos’ life interest ended, and the Court’s interpretation gave effect to that intention.
However, Kentros does not provide a complete answer to the question of how far an Ontario court can go in correcting a will after probate. The Court of Appeal confirmed that the law surrounding the remedial powers of a court of construction remains unsettled.
For now, the case demonstrates how Ontario courts may be able to give effect to a testator’s clear intentions despite a drafting error, but the precise boundaries of that power remain an open question.
