On November 20, 2016, Cameron Scott Rogers beat and stabbed his adoptive parents, David Rogers and Merrill Gleddie-Rogers, to death in their Nepean home. No reason was ever given for the vicious and brutal slayings.
Cameron was 22 years old at the time. He was charged with first degree murder. After the first trial was declared a mistrial, Cameron pleaded guilty to second-degree murder and received the mandatory, minimum sentence of twenty years in prison without parole.
This very tragic case will likely be in the news again in Ottawa. On March 9, 2021, Justice Marc Labrosse released the reasons for his decision in The Bank of Nova Scotia Trust Company v. Rogers.
The Bank of Nova Scotia, acting as estate trustee under the Wills of the late, David Rogers and Merrill Gleddie-Rogers, brought an application to obtain directions from the court as to the proper interpretation of David’s and Merrill’s last Wills. The estimated value of the estates of David and Merrill was said to be just over two million dollars.
David and Merrill had each prepared Wills naming the other as beneficiaries. Each of their Wills provided that if the other spouse were to die before (predecease) them, then the estate was to be distributed as follows:
- To retain the services of a counselor for Cameron;
- To rollover any RRSP, RIF and/or LIRA to Cameron’s Registered Disability Savings Plan, subject to allowable contribution limits; and
- To set aside the remaining money in the estate in trust to be used for the benefit of Cameron during his lifetime.
The Wills provided that upon the death of Cameron, the balance of the trust would be distributed in equal shares to his children then alive. If Cameron did not leave any living children, the balance was to be distributed evenly between Merrill’s brothers: Stephen, Graham and Gordon.
The issue before the court was how the two estates ought to be distributed.
Criminal Forfeiture Rule Prevents Murderer from Receiving Inheritance
The court noted the law has always held, for public policy reasons, that a person cannot be permitted to benefit from his or her crime. This is often referred to as the criminal forfeiture rule. This means the law would not permit Cameron, who murdered his parents, to benefit from either of their Wills and estates.
If Cameron was disentitled to his parent’s money, then who should it go to?
Option 1: Treat Both Deaths as Intestacies
It was noted there were two different approaches to the resolution of this question in the established case law. One line of cases took a strict, literal interpretation of the provisions of the Will. Pursuant to this line of authority, David and Merrill’s estates would be distributed as an intestacy, as if they had died without leaving a Will, resulting in their respective estates being distributed in accordance with the provisions of the Succession Law Reform Act. This result says that, since Cameron could not benefit from the estates as a matter of law due to public policy, and since Cameron was still very much alive, there were no other intended beneficiaries to whom the estates could pass.
Under intestacy law in Ontario, David’s estate would escheat to, or vest in the provincial Crown (provincial government) because he did not have any next of kin and Merrill’s estate would go to her brothers.
Option 2: Apply the Gift-Over Provisions in the Wills
A second line of cases determined that the gift-over provisions in the deceaseds’ Wills would be applied. A gift over provision is a clause in a Will that provides for a gift over to another person upon the happening of a specified event. David’s and Merrill’s Wills provided for a gift over to Cameron’s children then living if Cameron predeceased David and Merrill. If Cameron had no living children at the time of his death, the money was to go to Merrill’s brothers.
In order to arrive at this result, the court would either have to deem that Cameron had died before David and Merrill or it would have to imply a condition in the Will that the designated beneficiary, in this case Cameron, could only take under the Will if he was a legal beneficiary. If he had some legal incapacity, such as becoming disentitled as a beneficiary due to public policy, then the court would apply the gift-over provision.
Justice Labrosse favoured the second line of cases. He noted, as a general rule, that the courts will seek to avoid an interpretation of a Will that will result in an intestacy. Justice Labrosse reasoned that the subjective intentions of David and Merrill were clear. If Cameron and his children could not take under the Will then the money was to go to Merrill’s brothers. His Honour implied a condition in the Wills that Cameron had to be a legal beneficiary. Since he was not, the gift-over provisions would apply.
However, David’s and Merrill’s Wills provided for a gift-over to Cameron’s children then living, at the time of his death. What rights, if any, did Cameron’s unborn and unascertained children have with respect to David’s and Merrill’s estate?
Justice Labrosse had to turn his mind to this consideration as it was argued before him that David’s and Merrill’s estates should be invested and held until Cameron’s death and distributed in accordance with the terms of the Will at that time, either to his children, if he had any, or to Merrill’s brothers.
In the end, it was decided that David and Merrill intended to benefit Cameron’s children, if he had any, only after he died. The court found Cameron was disentitled at a time when he had no children and that this event triggered the gift-over to Merrill’s brothers. It was emphasized that David and Merrill intended their estates would benefit family and that Merrill’s brothers might not survive Cameron or his release from prison. The court also considered the fact that Cameron might try to conceive children for the sole purpose of trying to obtain some benefit from the estates. As a result, the bulk of David’s and Merrill’s estates was ordered to be used to purchase annuities for Merrill’s brothers in accordance with the gift-over provisions in the Wills.
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