When a person drafts a will, they are creating a blueprint for the future. They meticulously divide their assets, appointing trusted individuals to manage their affairs and selecting beneficiaries to receive their hard-earned property. But what happens when that future blueprint doesn’t account for life’s unexpected tragedies? What if a beneficiary named in a will passes away before the person who wrote the will?
This is not a rare occurrence, and it creates a common and complex legal question: Who gets the gift? Does it go to the deceased beneficiary’s family? Or does the gift fail completely and fall back into the estate, to be divided among the remaining beneficiaries?
This exact scenario was at the heart of a recent decision from the Ontario Court of Appeal, Devonport v. Devonport. The case offers crucial insight into how Ontario law addresses this complex issue and serves as a powerful reminder of the importance of precise and unambiguous will drafting.
A Family Dispute Over a Family Home
The case centred on the will in which the testator left a specific bequest (a property on Hopewell Avenue in Ottawa) to her son. Tragically, her son died before her.
This set the stage for a legal battle. The son was survived by his wife, and the testator was survived by her daughter.
The central dispute was this:
- The testator’s daughter (and the estate trustee of the testator’s estate) argued that because the son predeceased, the gift of the Hopewell property failed. In legal terms, she argued the gift “lapsed.” If the gift lapsed, the property would fall back into the residue of the testator’s estate, with the daughter being the sole surviving residual beneficiary.
- The son’s widow (and the estate trustee of the son’s estate) argued that the gift did not fail. She claimed that a specific provision in Ontario’s Succession Law Reform Act (the “SLRA”) automatically saved the gift, redirecting it from the deceased son to his widow.
The court was asked to interpret the testator’s will and decide the rightful owner of the Hopewell property.
Understanding the “Lapse” Doctrine in Ontario Estate Law
The common law principle of lapse is straightforward: a gift in a will fails if the beneficiary is not alive at the time of the testator’s death. You cannot give something to a deceased person. When a specific gift, such as this one, fails, it is said to “lapse,” and the asset in question (in this case, the Hopewell property) falls into the residue of the estate.
The residue is the “catch-all” portion of an estate. It is what remains after all the specific gifts have been paid out and all debts and taxes have been settled. If the daughter’s argument was correct, the Hopewell property would become part of the residue, and the son’s widow would receive nothing.
The Statutory Exception: Ontario’s “Anti-Lapse” Provision
This common law rule, while simple, was often seen as harsh. It could easily thwart the likely intentions of a testator. Would a mother, if she had thought of it, really want her son’s family to be disinherited simply because he happened to die before her?
To remedy this, the Ontario legislature created a powerful statutory exception to the lapse rule. This exception is found in Section 31 of the SLRA.
Section 31 of the SLRA
Section 31 is often referred to as an “anti-lapse” provision. It is specifically designed to save gifts made to certain close family members. The section rule provides that, unless a contrary intention appears in the Will, if a testator leaves a gift to one of their children, grandchildren, or siblings, and that person dies before the testator, the gift does not automatically lapse. Instead, if the deceased beneficiary leaves a spouse or descendants (i.e., children or grandchildren) of their own, the law deems the gift to pass to them. The property is distributed as if the deceased beneficiary had actually survived the testator and then died immediately after, leaving the property to their own family.
In the Devonport case, this provision was a perfect fit.
- The testator left a gift to…
- …her son (a person covered by s. 31), who…
- …predeceased her, but…
- …left a surviving spouse.
Based on this, the lower court applied Section 31. It found that the gift of the Hopewell property did not lapse. Instead, it was saved by the statute and passed directly to the son’s wife. The court declared her the owner of the property from the date of the testator’s death.
The “Contrary Intention”: How to Stop the Anti-Lapse Law
The testator’s daughter had argued that a contrary intention appeared in the Will, such that the anti-lapse rule should not apply. The lower Court disagreed, and the daughter appealed the decision to the Ontario Court of Appeal.
The anti-lapse rule in Section 31 is a default rule, not a mandatory one. A testator can override it by having their Will carefully drafted to contemplate this type of scenario. The statute applies unless the will itself shows a “contrary intention”: an explicit instruction from the testator that, in effect, meant that they did not want Section 31 to apply.
This was the core of the daughter’s argument. She argued that the specific wording of the testator’s will, when read as a whole, demonstrated a “contrary intention.” She claimed that the testator only ever intended for her son to own the house, and if he couldn’t, the gift should fail.
Will Interpretation: The Court’s Search for Subjective Intention
This is a critical point in will interpretation. When a dispute like this arises, a judge must determine the testator’s subjective intention as expressed in the will. The court must, in essence, sit in the testator’s “armchair” and read the will from their perspective, based on the words they chose to use.
The Court of Appeal reviewed the application judge’s decision and the will itself. It looked at the clauses the daughter pointed to, including the one that granted the gift and another clause dealing with divorce. The Court found no error.
The Court of Appeal’s decision was firm: the testator’s will did not indicate a contrary intention. The will was simply silent on what should happen if the son pre-deceased his mother. In the face of silence, the default statutory rule, section 31, must apply.
What Evidence Can a Court Consider about the Testator’s Intentions?
In an attempt to prove the testator’s “contrary intention,” her daughter tried to introduce evidence from the lawyer who had drafted the will. The argument, presumably, was that the lawyer would testify about the conversations they had with the testator and what the testator said she wanted.
The application judge refused to admit this evidence. The Court of Appeal agreed with this decision, highlighting another fundamental principle of estate law. Courts are extremely reluctant to admit “extrinsic” evidence (evidence from outside the four corners of the will) to interpret its meaning. The will itself is the final, executed, and legally binding document. Allowing verbal statements or a lawyer’s notes to change the meaning of a will would open a floodgate of litigation, as people could challenge straightforward wills based on misremembered conversations. There is also the important fact that the testator’s conversations with her lawyer still remain subject to solicitor-client confidentiality, despite the fact that the client is now deceased.
The Court of Appeal went even further, noting that even if the lawyer’s evidence had been admitted, it still would not support the conclusion that the testator had a contrary intention such that section 31 would be inapplicable.
A Secondary Dispute: Paying for the Privilege of Staying
During the legal battle, the testator’s daughter had been living in the main-floor apartment of the Hopewell property. Since the court ruled that the son’s wife had owned the property since the date of the testator’s death, the son’s wife argued that the testator’s daughter was essentially her tenant and owed back rent. She had requested an order that the daughter pay “occupation rent.”
The daughter fought this on two grounds.
A Procedural Argument:
She claimed the issue of rent was not properly raised at the original hearing. The Court of Appeal dismissed this flatly, pointing out that the request for occupation rent was clearly made in the son’s wife’s very first court filing (the Notice of Application).
A Substantive Argument:
She argued that she had been maintaining the Hopewell property and, on this basis, should get a 50% rent reduction (an arrangement her brother had enjoyed).
The Court of Appeal rejected this second argument as well, providing a vital lesson in litigation. The daughter had not made this argument about maintenance at the original hearing. Because she was raising it for the first time on appeal, there was no “evidentiary foundation” for it; no receipts, no invoices, no expert testimony on the value of her maintenance. An appeal is not a “do-over” where you can introduce new arguments or evidence.
The Court upheld the judge’s order for occupation rent, which was set based on the rent the son’s wife herself was paying for the other apartment in the building, finding it to be a reasonable measure.
However, the Court noted that all was not lost for the testator’s daughter. The son’s wife’s lawyer conceded that the daughter could and should advance her claim for maintenance expenses during the formal accounting of the estate. This is the proper forum for an Estate Trustee to account for all expenses paid and seek reimbursement from the estate or its beneficiaries.
The Absolute Necessity of a Clear Will
Ultimately, Devonport v. Devonport is a story of a gift that didn’t fail. It demonstrates how statutory law intervenes to interpret a will-maker’s silence, and it underscores, more than anything, the absolute necessity of a well-drafted, comprehensive, and clear will that anticipates all of life’s possibilities, as well as its tragedies.
Contact Tierney Stauffer LLP for Knowledgeable Will Drafting and Advocacy in Will Disputes in Ottawa
If you are navigating a will interpretation dispute, concerned about the consequences of a lapsed gift, or looking to update your estate plan to avoid unintended outcomes, the estate lawyers at Tierney Stauffer LLP are here to help. We provide comprehensive estate planning, administration, and litigation services in Ottawa, Cornwall, Kingston, North Bay, and the surrounding areas. Contact us online or call 1-888-799-8057 to discuss your rights, obligations, and options under Ontario estate law.
