All About Estates

Interpreting “Per Stirpes” In Ambiguous Wills

“The ghosts of dissatisfied testators,” a Chancery judge once noted, “Wait on the banks of the Styx for the judges who misconstrued their wills.” As such, the court will take great care to ensure that wills are properly interpreted, even if they are oblique or confusing. This was the situation in Estate of Stanley Moore v. Moore, 2018 ONSC 6420 where the court had to choose between four different interpretations of the residue clause in a will.

In this case, the testator never married and died without issues. He was survived by his sister Verna and predeceased by his brother John. Verna had three children; John had two.

The residue clause of the will (drafted almost forty years ago) is as follows:

“5.   TO DIVIDE the rest and residue of my estate […] in two equal shares and to distribute said shares as follows:

(a)           TO GIVE ONE such share to my Sister, VERNA REID, and my Brother, JOHN FREDERICK REID, for their own use absolutely.

(b)          TO DISTRIBUTE the remaining share among my surviving nieces and nephews, per stirpes.

  1.   IN THE EVENT if my aforementioned Sister or Brother, VERNA REID and JOHN FREDERICK REID, or any of my Nieces or Nephews shall predecease me, the share to which his, her or they would have been entitled, shall go to enlarge the shares of those surviving, per stirpes.”

Given John predeceased the testator, the estate trustee (Verna) brought an application to determine who his share should go to. She proposed four possible interpretations:

A.  John’s share (25% of the estate) goes to his children. The phrase “those surviving” in paragraph 6 means those surviving John and “per stirpes” is given its traditional meaning to pass down through the generations such that each branch of a family receives an equal share.

B.  John’s share is divided equally among all surviving beneficiaries (Verna and the five nieces and nephews). In this interpretation, the phrase “per stirpes” is effectively ignored and “those surviving” means those surviving the testator.

C.  John’s share is divided among all surviving beneficiaries in proportion to their share of John’s estate. As Verna has a 25% share of the estate and each niece and nephew has 10%, she would receive 2.5 times what each niece and nephew would receive. In this interpretation, the phrase “per stirpes” is effectively ignored and “those surviving” means those surviving the testator.

D.  John’s share goes entirely to Verna. In this interpretation, the phrase “per stripes” does not even apply. The focus, instead, is on the word “share” in subparagraph 5(a). In this interpretation, there is one share that goes to Verna and John “absolutely” and Verna, as the surviving sibling, is entitled to the entirety of this share (50% of the estate).

In Verna’s factum, she did not advance one interpretation over the others. However, in oral submissions her counsel advocated for option D (which would leave her and her children receiving 80% of the estate). Verna argued that the phrase “surviving nieces and nephews, per stirpes ” is inherently contradictory and should thus be ignored (e.g. if one of John’s son’s had predeceased the testator, then the phrase “surviving nieces and nephews” would mean the other son would inherit fully; “per stirpes” would mean that the predeceased son’s share would go to his children). She cited the case of Lau v. Mak Estate, [2004] O.J. No. 3354 (S.C.J.), to hold that “per stirpes” may be ignored in circumstances where it was used in a different sense than the established meaning to be attributed to it.

The respondents (John’s children), by contrast, argued that options C and D were not reasonable. In their view, these interpretations would leave paragraph 6 devoid of meaning. Alternatively, the respondents invited the court to utilize the “arm-chair” rule (the court will sit in the place of the testator to be in the same position of the testator when making his/her will). Using this rule, the court should take into account that the testator wished to treat the two families of his siblings equally.

The court applied the arm-chair rule in interpreting the will, reasoning that the testator intended the words “per stirpes” to have some meaning. In this case, it was to qualify the phrase “those surviving” as meaning the surviving beneficiaries of the branch of the family which the predeceased beneficiary belonged to. The use of the term “absolutely” to describe how Verna and John received their gift was cut down by the language of “those surviving, per stirpes” in paragraph 6. As such, John’s 25% share passed down to his children. Costs of the application were paid out of the estate, pursuant to an agreement between counsel.

This case demonstrates the importance of updating your will. Had the testator made a new will after John’s death then the costs of the application could have been avoided.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: jkaufman@devrieslitigation.com

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