Court Upholds Equal Family Distribution Under Ambiguous Will Clause

Led by

Peter Askew

Partner

Toronto

Team Members

• Joshua Cabral Cardoso

In Pierce v. Oswald, Peter Askew and Joshua Cabral Cardoso of Miller Thomson LLP acted for an estate trustee in an application seeking the Court’s opinion, advice, and direction regarding the interpretation of an ambiguous residue clause in the Deceased’s Will. The issue was whether the residue should be distributed equally among the Deceased’s five siblings’ families, passing to their issue per stirpes, or whether it should pass entirely to the sole surviving sibling (and subsequently to her estate), as the other siblings had predeceased the Deceased.

Applying the “armchair rule,” the Court held that the residue was to be distributed equally among the five siblings’ families per stirpes, with the share of any predeceased sibling passing to their issue. The Court found that the use of the term per stirpes reflected the Deceased’s intention to treat each sibling’s family equally and to provide for the surviving issue of any predeceased sibling.

The Court also noted that, while not determinative in this case, the anti-lapse provisions of the Succession Law Reform Act would have produced the same result.