All About Estates

Does the Timing of their Father’s Death Disinherit Them?

In Royston et al v Alkerton et al, 2016 ONSC 2986 (CanLII) the estate trustees of Recia’s estate sought the court’s advice and direction to interpret her will.

Recia had five children. Two of them, Alan and John, predeceased her. Alan had two children; John had none. Subsequent to Alan and John’s death, Recia made a will with the following provision:

My Trustees shall divide the residue of my estate equally among my children alive at my death; but if any child of mine dies before me, leaving issue alive at my death, my Trustees shall divide the part to which that deceased would have been entitled if alive on [sic] at my death among that child’s issue in equal shares per stirpes.

Alan’s children argued that Recia’s estate should be divided into four shares, and that they should receive the share which would have passed to Alan. Laura (one of Recia’s daughters) argued that as only three children were alive when Recia made her Will, the residue estate should be distributed between the three surviving children.

Laura and Alan’s children filed dueling affidavits regarding their relationship with the grandmother. Laura believed that Recia didn’t intend to benefit Alan’s children as they were brought up in a “happy, healthy and wealthy family situation”. The estate trustee also filed an affidavit stating that he was present when Recia instructed her lawyer regarding the Will, including that she wanted her three living children who were alive to be the beneficiaries under her Will.  He also attested that he advised Recia that the residue of her estate would pass to her three children and the lawyer did not contradict him.

Justice Taylor found that much of this evidence was inadmissible, as it was direct evidence of a testator’s intentions. As the Court of Appeal had held in Rondel v. Robinson Estate, much uncertainty would be introduced into estate litigation if disappointed beneficiaries could challenge a will based on their subjective belief of the testator’s intention. As such, his Honour interpreted the clause at issue in the context of Recia’s entire Will.

Justice Taylor ruled that the phrase, “my children” should not be restricted to anything other than their plain meaning: all of her children. If Recia wanted to benefit only the issue of children living at the time of her Will or to expressly exclude Alan’s children she could have done so. She did not.

Furthermore, Recia had made a previous will before Alan’s death which had similar language to her Will. There is no evidence that Recia intended to effect a change to her intent on how to deal with Alan’s children when the new Will was drafted.

Finally, Justice Taylor noted that the Will stated that the share of any beneficiary who died before reaching the age of 21 without issue would be divided amongst her issue per stripes. As this would include Alan’s children, it supports the conclusion that Recia intended to benefit Alan’s children.

As such, Justice Taylor held that Alan’s children were entitled to a quarter of Recia’s estate.

Justice Taylor correctly noted that the estate trustee’s opinion that the clause at issue did not express Recia’s wishes is inadmissible. However – and without being able to review exactly what the estate trustee attested to – it appears that the estate trustee may have attested not only to Recia’s intention but also as to the specific instructions given to her lawyer. While any evidence relating to a testator’s alleged intention or wishes is inadmissible, some evidence relating to instructions given to a lawyer has been admissible in rectification applications. In such proceedings, the court may rectify a will where there is an accidental slip or omission because of a typographical or clerical error, where the testator’s instructions have been misunderstood or where the testator’s instructions have not been carried out (e.g., where a testator instructs a lawyer to leave a beneficiary $100.00, but the lawyer accidentally writes $10,000). The application at issue, of course, was one by the estate trustees for advice and direction, not rectification. We do not know whether any disappointed beneficiary has brought an application to rectify the Will which would attempts to use the estate trustee’s evidence. It is therefore an open question whether this issue will ever be adjudicated by the courts.

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: