In the recent Court of Appeal decision, Ihnatowych Estate v Ihnatowych, 2024 ONCA 142, the court held that under the common, law, the courts can rectify deficiencies and errors in a Will. The courts should be concerned with a testator’s intentions not being followed because of errors or deficiencies in a Will.

Re Estate of Blanca Esther Robinson (Re), 2010 ONSC 3484 sets out the circumstances where a court may rectify a will:
  1. where there is an accidental slip or omission because of a typographical error or clerical error;
  2. where the testator’s instructions have been misunderstood; or
  3. where the testator's instructions have not been carried out.


The Testator, John Ihnatowych (“John”), had three biological children. John’s eldest child, Alexander Erik de Berner (“Alexander”), was from a previous relationship. John only became aware of Alexander when Alexander was thirty years old. Alexander had two children, Parker and Darwin. Ulana Gorgi (“Ulana”) and Markian Ihnatowych (“Markian”) were children from John’s marriage. Ulana had three children, Adrian, James and Michael.

John executed a Will in 2009. The Will instructed 10% of the residue of his Estate to be distributed among his grandchildren alive at the time of his death in equal shares (the “Grandchildren Clause”) and the balance of the residue of his Estate to be distributed among his issue alive at the time of his death in equal shares (the “Residue Clause”).

When John met with his lawyer, Roman Zarowsky (“Mr. Zarowsky”) to provide instructions, John gave Mr. Zarowsky handwritten notes entitled, “My Last Will John Ihnatowych”. John’s notes specifically referenced Ulana and Markian but did not mention Alexander. Additionally, John never mentioned Alexander or Alexander’s children to Mr. Zarowsky.

Court of Appeal Agrees with the Applicant Judge’s Decision

In the lower court decision, Gorgi v Ihnatowych, 2023 ONSC 1803, Ulana brought an application to rectify the Will to name Ulana and Markian as John’s children under the Residue Clause and the Grandchildren Clause and to specifically exclude Alexander and his children as beneficiaries of the Estate.

The application judge referred to Mr. Zarowsky’s evidence and found that John’s notes evidenced he wanted to leave everything to Ulana and Markian and their children only. However, Mr. Zarowsky noted he did not draft the Will to limit the beneficiaries to only Ulana, Markian, and their children. Therefore, John’s Will did not accurately reflect his instructions. The application judge concluded the Will contained an unintended error since John’s instructions had not been carried out and ordered rectification of the Will to only include the intended beneficiaries.

The Court of Appeal held the application judge made no unprecedented application of the equitable doctrine of rectification, referencing Hofman v Loughleed et al in support. In this case, the drafter of the Will included a precedent clause which excluded any children born out of wedlock. The drafter often used this exclusion clause when drafting wills, however, it did not conform with the testator’s instructions. Thus, the court rectified the Will and deleted the clause.

Ihnatowych is a cautionary tale about ensuring your will clearly sets out your intentions. Although the Court of Appeal upheld the Superior Court Decision, the beneficiaries had to seek assistance from the court, likely at great cost. Contact Esther Abecassis in our Wills and Estates Group to draft your will or to review your existing will. A properly drafted will ensure the smooth administration of your estate and avoid conflict amongst beneficiaries.

If you are in a situation where the beneficiaries are in a conflict regarding the distribution of an estate or trying to sort out the intentions of the testator, contact David Derfel in our Estate Litigation Group.  David and his team will assess your situation and determine the course of action.


Ihnatowych is a decision that deals with the wishes and true intentions of the testator.  This is not to be confused with a will challenge based on the allegation that a will does not comply with the formal drafting requirements set out in section 4 of the Succession Law Reform Act (SLRA). Examples of non-compliance include an unsigned will, or a will not properly witnessed.  As of 2022, Ontario is now a “substantial compliance” jurisdiction.  A will may still be validated even if fails to comply with the SLRA.

This blog was co-authored by Summer Law Student, Barbara Attia.

Gorgi v Ihnatowych, 2023 ONSC 1803.
Hofman v Loughleed et al, 2023 ONSC 3437.
Ihnatowych Estate v Ihnatowych, 2024 ONCA 142.
Re Estate of Blanca Esther Robinson (Re), 2010 ONSC 3484.
Rondel v Robinson Estate, 2011 ONCA 493.