In a recent case, the court was asked to interpret the residue clause of the Deceased’s Will.

The Deceased passed away in 2016. In her 1997 Will, she named her daughter as the sole executor and residuary beneficiary. However, both her daughter and alternate estate trustee predeceased her. The Will directed that, in the event her daughter predeceased her, the residue of the estate would be divided among the Deceased’s five siblings.  All five siblings predeceased her except for one sister, Hilda, who later died in 2020.

The estate trustee brought an application for the court’s opinion, advice and direction with respect to the residue clause of the Deceased’s Will.  The application sought the court’s direction on whether the residue should be distributed equally among the five siblings’ families passing to their issue per stirpes or if the entire residue should pass to the sole surviving sibling, Hilda, and subsequently to her estate, as the other siblings predeceased the Deceased.

The residue clause of the Will was as follows:

 (d) if my said daughter should predecease me, I direct my Trustee ………to divide the residue of my estate into equal shares per stirpes, and to give or otherwise transfer one such share to each of the following……..for their own respective uses absolutely, and in the event that all of the aforesaid persons shall have predeceased me, I direct my Trustee to divide the residue of my estate among my surviving issue”.

Applying the “armchair rule” the court found that the residue of the estate should be distributed equally among the five siblings’ family per stirpes, with the share of any predeceased sibling passing to their issue. The use of the term per stirpes indicates the Deceased’s intention to benefit each sibling equally and, in the event of a sibling’s death, their surviving issue.

The court also found that while not applicable in this case, applying the anti-lapse provisions of the Succession Law Reform Act would have resulted in the same distribution of the residue.

The court ordered that the residue be transferred to the Deceased’s surviving sibling and to the issue of each of the Deceased’s predeceased siblings in proportionate shares.

The case serves as a reminder of the importance of updating estate plans to reflect the deaths of named beneficiaries as a subsequent court application is expensive and delays the administration of the estate.