The legal terms per stirpes and per capita are often misunderstood and have been the subject of much confusion in will interpretation exercises. The recent case of Dice v. Dice Estate, 2012 ONCA 468 (CanLII) discussed these concepts and sheds some light as to their meaning and proper usage. The main issue in the appeal was what meaning, if any, should be given to the phrase “per stirpes” as it appears in the will of the late Joseph Wesley Dice (“Mr. Dice”). In his will, Mr. Dice left a life interest in the residue of his estate to his wife (“Mrs. Dice”). He further directed that on her death, the remainder of the residue should be used to pay her burial and funeral expenses and thereafter be divided “equally, between [his] son, James Edgar Dice, and [his] daughter, Marlene Marguerite Buck, per stirpes.” James Edgar Dice survived his father but predeceased his mother, the life tenant of his father’s estate. Thus on Mrs. Dice’s death, the question arose as to what meaning should be given to the term “per stirpes” used in Mr. Dice’s will to thereby determine who should share in the remaining portion of the residue.
In keeping with historical and case law definitions, a per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator’s death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child’s share of the gift. Some definitions also state that this is inheritance by representation. Thus, the issue in the case at hand was whether the testator intended to treat his children’s “stocks”, or branches of the family, equally in the event that either of them predeceased their mother.
This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator’s death would receive one share of the gift.
Unfortunately, the interpretation difficulty in the case arose because a per stirpes distribution which includes the possibility of an intergenerational gift was erroneously tacked onto a gift to the testator`s son and daughter, by name. This is a gift to only one generation and, therefore, a contradiction in terms. The correct use of the term is to make a gift to a person`s “issue [or issue alive at their death or issue then living] per stirpes”.
The principle which governed the case is that the court must strive to ascertain the intention of the testator. Although the testator used “per stirpes” in the wrong way, the Court reasoned that he must have used it for a reason and to ignore it would unjustifiably run the risk of ignoring the testator’s wishes. Thus the Court decided that the most likely meaning of the phrase “per stirpes” is the traditional one, in that it conveys the testator’s intention to benefit, at least, his children’s children in the event either or both of his children predeceased his wife. Thus, it was declared that Eddie’s share of the residue passes to his children.
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