This Blog was written by: Alicia Mossington (Godin), Estate and Trust Consultant, Scotia Wealth Management 

To paraphrase a popular song this time of year:

He’s making a list

He’s checking it twice

He’s going to find out whose naughty or nice …  Santa Claus is coming to town

He knows when you’ve been bad or good, so be good for goodness sake.

Episodes 60-62 of the Canadian True Crime Podcast[1] details the murder of Richard Oland. Oland was the vice-president of Moosehead Brewery, the “last major brewery in Canada owned by Canadians.”[2] He was murdered at his office in St. John, New Brunswick in July 2011. Oland’s son Dennis came under suspicion for the killing and was officially charged and then convicted of second-degree murder in December of 2015.

Within days of his father’s death Dennis Oland became the president of his main numbered company, executor of the estate and co-trustee of a spousal trust set up for his mother Connie. Dennis and his siblings were also the residual beneficiaries of the spousal trust on Connie’s ultimate demise.

The executor (also referred to as an estate trustee), is the individual or entity named in the Last Will and Testament who is responsible for the administration of the estate. Most readers are aware that an executor is responsible for the payment of the deceased’s outstanding debts, taxes and funeral expenses (among many other tasks) and must then distribute the estate among the beneficiaries in accordance with the instructions in the Will.

Dennis Oland’s conviction was overturned on appeal in 2016 and he was found not-guilty on retrial in 2019.[3]

In Ontario, generally, an individual executor must be at least 18 years of age and must be mentally capable. Ideally, the potential executor should not have a recent criminal record and should not have filed recently for bankruptcy. In the case of Dennis Oland, his charge (and subsequent conviction) did not necessarily preclude him from acting as executor or trustee, although it did likely preclude him from benefiting under the residual estate due to the common law Slayer Rule.

Common law forfeiture laws in Canada preclude an individual from deriving a benefit from their own “morally culpable conduct.” In the context of the testator-beneficiary relationship, a beneficiary who is found to have caused the unlawful death of a testator will be deemed at common law to have predeceased the testator, thereby extinguishing any interest in the testator’s estate.[4] This is colloquially known as the “slayer rule” and extends further to prevent any person who wrongfully kills another to profit as a result of the deceased person’s death.[5]

It is less clear whether the Slayer Rule, which is a rule of public policy, extends to instances of indirect benefit… where the benefit to the killer arises indirectly from their victim’s death. For example, would a murdering executor be entitled to claim compensation for carrying out their role?

The Australian court considered a scenario of indirect benefit in Public Trustee (WA) v Mack. Ms. Mack was killed by one of her sons, Brent, and died intestate. Brent was convicted of the murder, and Ms. Mack’s estate passed to her other son Adrian. Several years later Adrian died intestate. The court examined whether the Slayer Rule should apply to prevent Brent from inheriting Adrian’s estate under intestacy rules. They found that it did.[6]

If a murderous beneficiary is also named as an executor and is treated as having predeceased the testator for the purposes of their inheritance, it is likely the same would apply to preclude them acting as an executor.

However, would a murdering executor, who is not a beneficiary, be precluded from acting … this is a question to be addressed in a future blog entry.

In the words of Justice Southin “when I was at the bar, I should not have cared to advise a testator to provide for the possibility of being murdered by a beneficiary.”[7]

[1] Dhaliwall v Dhaliwall, 1986 CanLII 969 (BC SC) at para 19.

[1] Lee, Kristi. “The Murder of Richard Oland Part 1-3” (Canadian True Crime: Spotify).

[2] https://moosehead.ca/about.

[3] Supra note 1.

[4] “The Common Law Slayer Rule.” (Hull, 2017) Retrieved from https://hullandhull.com. Accesssed Dec 1, 2020.

[5] See Oldfield v Transamerica Life Insurance Co. of Canada (SCC) or Demeter v Dominion Life Assurance Co. (ONCA)

[6] “Inheritance, the “Slayer Rule” and Reaping the Proceeds of Death.” (Paperny, Daniel. 2019) Retrieved from https://welpartners.com/blog/

[7] Dhaliwall v Dhaliwall, 1986 CanLII 969 (BC SC) at para 19