In Kentros v. Kentros, 2026 ONCA 546, the Court of Appeal for Ontario considered a will that was missing an important dispositive provision. The will gave the testator’s husband a life interest in two Fort Erie properties but did not expressly state who would receive those properties when the life interest ended.
The application judge addressed the omission by adding a remainderman clause to the will.
On appeal, however, the Court concluded that it did not need to decide whether a court of construction has jurisdiction to insert new words into a will that has already been admitted to probate. Instead, the Court upheld the intended distribution by interpreting an existing gift-over provision in the will.
The appeal and cross-appeal were both dismissed, and the two properties were to pass to the testator’s grandchildren, Matteo and Sofia, upon the termination of the husband’s life interest.1
The decision is significant not because it confirms a broad power to add language to probated wills, but because it demonstrates how principles of will interpretation may resolve what initially appears to be a rectification problem.
Background
Eftychia “Effie” Kentros’s will gave her husband, Manthos, a life interest in two properties in Fort Erie. It also provided that if Manthos failed to survive Effie by 30 days, the properties would pass to her grandchildren, Matteo and Sofia, who were the children of Effie’s daughter, Aleka.2
The will did not expressly address what would happen if Manthos survived Effie by more than 30 days and his life interest subsequently ended. Manthos was also named as the absolute beneficiary of the residue of Effie’s estate.
After probate, Manthos took the position that the properties fell into the residue and that he was therefore entitled to them absolutely. He transferred the properties to an alter ego trust under which Matteo and Sofia would ultimately receive them. However, Manthos retained powers to revoke or amend the trust and to sell or encumber the properties.3
Effie’s son, Dino, brought an application for directions and sought an order rectifying Effie’s will “such that a missing dispositive clause be inserted,” which would give him or his issue an interest in one of the properties. In the alternative, he argued that the properties should be distributed on an intestacy. The Office of the Children’s Lawyer took the position that both properties should pass to Matteo and Sofia upon the termination of Manthos’s life interest.4
The drafting solicitor acknowledged that a remainderman clause had been omitted from the will in error.
The application judge ordered rectification by adding a clause directing that, upon the termination of Manthos’s life interest, the properties would pass to Matteo and Sofia. The application judge also declared the transfer of the properties to the alter ego trust void.5
The Court of Appeal’s decision
A central issue on appeal was whether the application judge, sitting as a court of construction after the will had been admitted to probate, had jurisdiction to insert a new dispositive clause into the will.6
The Court of Appeal did not decide that question.
Instead, it concluded that the same substantive result could be reached by interpreting the gift-over provision already contained in the will. Although that provision was expressly framed to apply if Manthos failed to survive Effie by 30 days, the Court held that it could also operate when Manthos’s life interest ended after he had survived the 30-day period.7
The Court referred to the Supreme Court of Canada’s decision in Kilby v. Harmer Estate in support of construing an existing testamentary provision so that it could apply in an analogous circumstance not expressly addressed in the will. This allowed the Court to give effect to the existing gift-over provision without formally adding words to the probated will.8
Why interpretation was available
Several features of the will and the surrounding circumstances supported the Court’s interpretation.
First, the drafting solicitor admitted that the remainderman clause had been omitted in error.
Second, the structure of the will indicated that Effie intended the Fort Erie properties to be treated separately from the residue. Manthos was given only a life interest in the properties, even though he was named as the absolute beneficiary of the residue. The will also specifically provided that Matteo and Sofia would receive the properties if Manthos failed to survive Effie by 30 days.9
Reading the will in light of the surrounding circumstances, the Court concluded that Effie intended Matteo and Sofia to receive the properties upon the termination of Manthos’s life interest. The omission created what the Court characterized as an “obvious ambiguity,” but the existing language of the will provided a sufficient basis for resolving it.10
The application judge’s substantive result therefore did not require the formal alteration of the will’s text. The existing gift-over provision could be interpreted as governing the disposition of the properties after Manthos’s life interest ended, regardless of whether he had survived Effie by more than 30 days.11
Extrinsic evidence and section 13 of the Evidence Act
The Court of Appeal also rejected challenges concerning the treatment of extrinsic evidence and the application of section 13 of Ontario’s Evidence Act.
Section 13 prevents a party from obtaining judgment based on that party’s evidence of a matter occurring before the deceased’s death unless the evidence is corroborated by other material evidence.12
The Court held that Dino’s evidence was not independently corroborated in the manner required to establish that Effie intended him or his children to inherit one of the properties.
However, admissions made by Dino and Manthos that were contrary to their own interests did not require corroboration under section 13. Those admissions could therefore be considered as part of the interpretive analysis in determining Effie’s intentions.13
The Court also rejected the argument that the admissions had been used to displace or override the will. The admissions instead supported conclusions drawn from the language of the will, considered in its surrounding circumstances.14
The unresolved legal issue
The decision does not definitively establish whether a court of construction may rectify a probated will by inserting an entirely new dispositive clause.
The Court expressly declined to resolve that question because the appeal could be decided through interpretation of the will’s existing language. The broader question concerning the jurisdiction of a court of construction to add words to a will after probate therefore remains open.15
At a general level, the relevant concepts can be distinguished as follows:
- Probate addresses whether a document is legally valid as the deceased’s will and authorizes the estate trustee to administer the estate.
- Construction determines the meaning and legal effect of the will that has been admitted to probate.
- Rectification addresses circumstances in which an error or omission has prevented the will from accurately recording the testator’s instructions.
These concepts are distinct, but their practical boundaries are not always clear. Kentros illustrates the difficulty particularly well: the application judge addressed the drafting omission by adding a new clause, while the Court of Appeal reached the same result by interpreting language that was already contained in the will.16
The alter ego trust and costs
The Court of Appeal also declined to interfere with the order declaring the transfer of the properties to the alter ego trust void.
Although the terms of the trust contemplated that Matteo and Sofia would ultimately receive the properties, Manthos retained the ability to revoke or amend the trust and to sell or encumber the properties. The transfer was also made after Manthos, acting as estate trustee, took the position that the drafting omission caused the properties to fall into the residue for his own benefit.17
The Court also upheld the application judge’s disposition of costs. Some costs were appropriately payable from the estate because the omission in the will created the need to seek the court’s directions. Other costs were not charged to the estate because the positions advanced by the parties had unnecessarily expanded the proceeding.18
Why Kentros matters
What makes Kentros particularly interesting is the Court of Appeal’s restraint.
The appeal presented an opportunity to address an important question concerning the jurisdiction of a court of construction to add language to a will after probate. The Court ultimately concluded that it did not need to decide that question because traditional principles of will interpretation were sufficient to resolve the dispute.
The decision demonstrates that a drafting omission does not necessarily mean that the text of a probated will must be formally changed. Where the will’s existing language, read as a whole and in light of the surrounding circumstances, provides a reliable basis for identifying the testator’s intention, construction may resolve what initially appears to be a rectification problem.
For estate litigators, the distinction is not merely technical. How a dispute is characterized can affect the applicable legal analysis, the relevance and admissibility of extrinsic evidence, and the relief ultimately sought from the court.
Before asking a court to insert language into a probated will, counsel should therefore consider whether the existing provisions can reasonably be interpreted to address the omission. At the same time, Kentros should not be read as authorizing courts to use interpretation as a general licence to rewrite unclear or incomplete wills. The result depended on the particular language of Effie’s will, the structure of the gifts she had made, and the surrounding evidence of her intentions.
The key point from Kentros is consequently narrower than a general ruling that courts of construction may add words to wills. The Court upheld the intended distribution by treating an existing gift-over provision as capable of applying when Manthos’s life interest ended.
Whether a court of construction may independently insert a new clause into a will that has already been admitted to probate remains unresolved.
Written by Vanessa Locicero
[1]Kentros v. Kentros, 2026 ONCA 546, at para. 122.
[2] Ibid at paras 8–14.
[3] Ibid at paras 18-20.
[4] Ibid at para 20 and 24.
[5] Ibid at paras 31 and 34.
[6] Ibid at para 42-48.
[7] Ibid at paras 54 and 67–70.
[8] Ibid at para 67–70; Kilby v. Harmer Estate, 1964 CanLII 19 (SCC), [1965] S.C.R. 24.
[9] Ibid at para 59–63.
[10] Ibid at para 60–65.
[11] Ibid at para 67–70.
[12] Ibid at paras 75; Evidence Act, R.S.O. 1990, c. E.23, s. 13.
[13] Ibid at paras 73–88.
[14] Ibid at paras 96–99.
[15] Ibid at paras 42–54 and 67–70.
[16] Ibid at paras 43–45, 51 and 54.
[17] Ibid at para 110–115.
[18] Ibid at paras 117–121.