Most people assume that if a court can identify what a deceased person probably intended, the court can simply correct a drafting problem and carry out those wishes.
The Alberta Court of Appeal's decision in Constant Estate (Re), 2025 ABCA 329 demonstrates that the law is not always that simple. Even where a will appears to point toward a particular outcome, courts cannot rewrite a will or add provisions that do not exist.
The case is an important reminder that careful drafting matters and that even seemingly minor omissions can have significant consequences for an estate.
The Problem With the Will
Ashley Colin Constant's will appointed Jane Ann Summers as his personal representative. However, the will did not identify any specific beneficiaries and did not name anyone to receive the residue of the estate.
Instead, the will contained only a contingency clause stating that if Ms. Summers predeceased him, the estate would pass to the Dogwood Foundation.
After Mr. Constant's death, Ms. Summers argued that the will should be interpreted as showing that the deceased intended her to inherit the estate.
The courts disagreed.
Courts Focus on the Testator's Intention
When interpreting a will, courts attempt to determine and give effect to the testator's intention.
To do so, courts generally consider:
- The wording of the entire will;
- The ordinary meaning of the words used;
- The overall structure of the document; and
- Relevant surrounding circumstances and admissible extrinsic evidence.
However, there is an important limitation.
A court can interpret existing language, but interpretation does not allow a court to create entirely new provisions that the testator never included.
Interpretation Has Limits
The Court of Appeal explained that Ms. Summers' argument required something more than interpretation.
To accept her position, the Court would effectively have needed to add a clause naming her as the residual beneficiary.
The problem was that no such clause existed in the will.
The Court concluded that adding a residual beneficiary provision would amount to rewriting the document rather than interpreting it. Courts generally do not have authority to do that through ordinary will interpretation.
As a result, the estate was treated as partially intestate with respect to the residue.
Interpretation Versus Rectification
One of the most useful lessons from the case is the distinction between interpretation and rectification.
Interpretation
Interpretation involves determining what existing language means.
The court examines the words that appear in the document and decides how they should be understood.
Rectification
Rectification is different.
Rectification may be available where clear and convincing evidence establishes that the will does not accurately reflect the testator's intentions because of:
- An accidental omission;
- A drafting error;
- A misdescription; or
- A failure by the person preparing the will to properly implement instructions.
In Constant Estate, the Court noted that a rectification claim would have required evidence regarding the deceased's instructions and intentions. Unfortunately, that evidence was largely unavailable.
The Missing Evidence
A key problem for Ms. Summers was the lack of evidence showing what instructions Mr. Constant gave when the will was prepared.
The available evidence included:
- The wording of the will;
- The contingency clause involving the Dogwood Foundation; and
- Limited information about the deceased's circumstances and relationships.
The Court found that this evidence was insufficient to establish with the necessary certainty that the deceased intended Ms. Summers to inherit the estate.
Without clear evidence of the missing instructions, the Court could not fill in the gap.
Why Residue Clauses Matter
The case highlights the importance of a properly drafted residue clause.
A residue clause directs what happens to assets remaining in the estate after debts, taxes, expenses, and specific gifts have been addressed.
Without a valid residue clause:
- Part of an estate may pass through intestacy rules;
- Individuals may inherit who were never intended beneficiaries;
- Litigation may arise; and
- Administration can become significantly more complicated.
Residue clauses are often among the most important provisions in an estate plan.
Practical Lessons for Alberta Estate Planning
The decision provides several important reminders:
Clearly Identify Beneficiaries
Every will should clearly identify who receives specific gifts and who receives the residue of the estate.
Include Alternate Beneficiaries
Backup beneficiaries can help prevent uncertainty if a primary beneficiary dies first or cannot inherit.
Document Instructions Carefully
Lawyer notes, drafting instructions, and related records can become critical evidence if a will is later challenged or requires rectification.
Review Wills Regularly
Regular reviews can identify drafting issues before they create problems for family members after death.
The Bottom Line
Constant Estate (Re) demonstrates that courts cannot simply fill in missing provisions because a particular outcome appears logical or likely. Where a will fails to name a beneficiary, the omission may lead to partial intestacy unless there is sufficient evidence to support rectification.
The decision is a powerful reminder that careful drafting, clear instructions, and regular estate plan reviews are essential to ensuring that a person's wishes are carried out as intended.
MerGen Law is Here to Help You
At MerGen Law, we assist clients throughout Alberta with estate planning, will preparation, will interpretation disputes, rectification applications, estate administration, and estate litigation. Whether you are creating a new estate plan or dealing with uncertainty in an existing will, we are here to help.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about beneficiaries should seek professional advice tailored to their specific circumstances.