Generally when people place their death wishes in a will, they do not contemplate that their named beneficiary may die before them. Should this situation arise and the will maker did not make provision for it, unintended consequences may result. Lapse is a term used to describe the scenario in which a gift is made to a beneficiary who predeceases the testator.
For certain situations, the relevant statute outlines “anti-lapse” provisions which are designed to prevent the gift from failing entirely and will become effective unless the testator expressed a contrary intention in the will. In this regard, the legislation provides that where a testator makes a devise or bequest to a child, grandchild, brother or sister who predeceases the testator but leaves a spouse or issue who survive, the gift does not lapse but is distributed to the deceased relative’s spouse and/or issue as if he or she had died intestate. When the will states a contrary intention, namely a substitute beneficiary, it is called a “gift-over” provision.
In Ksianzyna Estate v. Pasutszok, 2008 CanLII 59321 (ON SC), the testator, Paul Ksianzyna died on June 5, 1997 leaving a Will. In the Will, he left 20 per cent of the residue of his estate to Donna Worrel who predeceased him. The Court concluded that under general principles of will construction the gift to her in the Will lapsed, since no contrary intention was expressed or implied by the Will.
Counsel for Donna Worrel`s daughter, Christine Worrel, argued that Donna Worrel enjoyed a “special relationship” with the testator akin to a “child” such that the court should extend the definition of “child” to apply to Donna Worrel in terms of her relationship with the testator. The goal of their argument was to benefit from the anti-lapse provisions of the statute which would render the gift made to Donna Worrel instead payable to Christine Worrel. The Court decided that it was not its role to go beyond the plain and ordinary meaning of the term “child” thus the anti-lapse provision of the statute was not available to save the lapsed gift in the Will to Donna Worrel.
The Court then relied on the statutory provisions and case law to conclude that since the gift was a portion of the residue, the lapsed gift should be transferred as if the testator had died without a will with respect to the property in question. This is known as a partial intestacy. Since the testator was not married, had no children, and his parents were not alive at the time of his death, the Court ordered that the twenty shares of the residue be divided into seven equal shares and distributed amongst the siblings of the testator in accordance with the statute. As some of the testator’s siblings predeceased him, the children of such siblings shared equally the portion of the residue that was to go that sibling.
In conclusion, since a testator has the opportunity to express a contrary intention, the possibility of a beneficiary predeceasing him or her should always be considered so as to name substitute beneficiaries for every gift under the will.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.