This blog post was written by Mohena Singh, Associate at Fasken LLP.

Imagine a picturesque cottage in Shrewsbury, Ontario, a place filled with family memories and the promise of future gatherings. This cottage, however, became the centre of a legal conundrum after the passing of its owner, Floyd Kersey (“Floyd”), and the subject matter of the case of Spencer v. Spencer et al.. Floyd’s will, crafted in 1983, was meant to ensure his estate was distributed fairly among his loved ones. But as is often the case with legal documents, the devil is in the details.

Floyd, a resident of Ypsilanti, Michigan, passed away in 1995, leaving behind a will that named specific beneficiaries, including his children and grandson. Fast forward three decades, and the cottage in Ontario still hadn’t been transferred to the rightful heirs. The delay stemmed from ambiguities in Floyd’s will, particularly regarding the shares of the residue set aside for those beneficiaries who predeceased him should be dealt with.

The specific provision that caused the ambiguity was Article 7 of the Will, which stated:

“IT IS FURTHER OUR JOINT WILL that we give, devise, and bequeath all the rest, residue and remainder of any estate or property which we, or the survivor of us may die seized or possessed in Canada to our aforesaid children, and grandson, RICHARD SPENCER, DIANNA M. SPENCER, ROBERT G. KERSEY, PAULETTE GAMBREL, and LANE S. KERSEY, equally, share and share alike; provided, however, that should our daughter DIANNA M. SPENCER predecease us, then her share of said property shall be divided equally among her children, share and share alike, other than RICHARD SPENCER.”

One of Floyd’s children, Robert Kersey (“Robert”), predeceased him and so the question became, what would happen to his share of the estate?

Richard Spencer, Floyd’s grandson, stepped in as the Personal Representative of the Estate. His mission? To untangle the legal knots and ensure the cottage found its way to the intended beneficiaries.

The court was tasked with resolving three pivotal issues:

1. Anti-Lapse Provision: Did the will’s wording trigger the anti-lapse provision under section 31 of Ontario’s Succession Law Reform Act (“SLRA”)?
2. Class Gift: Was the gift to the beneficiaries in Article 7 of the Will a “class gift”?
3. Distribution of Shares: How should the share of Robert, who predeceased Floyd, be handled?

Anti-Lapse Provision: The SLRA’s anti-lapse provision prevents a gift from lapsing if a beneficiary predeceases the testator but leaves a spouse or issue (descendants) surviving the testator, unless a contrary intention appears in the will. If the anti-lapse provision was to apply, then Robert’s share would pass to his surviving spouse and issue in equal shares rather than reverting to the estate.

Class Gift Determination: The court evaluated whether the gift was intended for a specific class of beneficiaries or named individuals. Given that the will named specific individuals, the court determined it was not a class gift, meaning each named beneficiary had a distinct share.

Distribution of Robert’s Share: The court analyzed the phrase “share and share alike” in Article 7 of the will. This phrase has been interpreted in case law to indicate a “per capita distribution,” meaning each beneficiary receives an equal share. However, the court noted that in family distributions, the intention is often for a “per stirpes distribution,” where the descendants of a predeceased beneficiary inherit their parent’s share. The court reviewed the principles of will construction, emphasizing the importance of ascertaining the testator’s subjective intention and the “golden rule” that a testator did not intend to die intestate.

The court found that Floyd’s intention, as evidenced by his will’s language, was for a per stirpes distribution. This interpretation was supported by the specific provision for Dianna Spencer’s share in case she predeceased the testator, which indicated that Floyd intended for the shares of predeceased beneficiaries to pass to their issue. The exclusion of Richard Spencer from sharing in Dianna’s share further indicated Floyd’s intention for an equitable distribution among family members.

This decision is a compelling reminder of the importance of precise language in estate planning. It underscores the need for testators to consider potential contingencies and clearly articulate their intentions to avoid disputes and ensure their wishes are honoured.

As we reflect on Spencer v. Spencer et al., we are reminded that wills are more than legal documents; they are expressions of a person’s legacy and love for their family. Ensuring these documents are crafted with care and clarity is essential for preserving family harmony and honouring the testator’s final wishes.

Finally, this case serves as an important reminder of the importance of consulting with knowledgeable legal professionals – it can make all the difference in navigating the complexities of estate law.

Thank you for reading.