Opinion, Advice or Direction of the Court in Interpreting a Residue Clause

May 30, 2016 Ian Hull Executors and Trustees, Wills Tags: , , , , , , , , , , , 0 Comments

In Royston (Trustees of) v Alkerton, 2016 ONSC 2986, the executors of the estate of Recia Royston (“Recia”) sought the opinion, advice or direction of the court regarding the interpretation of a residue clause in Recia’s Will. The clause in question read as follows:

My Trustees shall divide the residue of my estate equally among my children alive at my death; but if any child of mind dies before me, leaving issue alive at my death, my Trustees shall divide the part to which that deceased would have been entitled if alive on [sic] at my death among that child’s issue in equal shares per stirpes.

Recia had five children: Michael, Peter, Laura, Alan, and John. Both Alan and John predeceased Recia. Alan had two children, Jacob and Jennifer; John had no children.

The question for the court was whether Jacob and Jennifer were entitled to the share of Recia’s estate to which their father, Alan, would have been entitled if alive. Laura’s position was that Recia intended the clause to capture only those of her children alive at the time of the execution of the will on May 13, 2014 (the “2014 Will”), namely Laura, Michael, and Peter.

blog photo - interpretation of residueThe court found that Recia intended the plain meaning of the term “my children” in the clause in question, which would accordingly include all of Recia’s children. Recia had chosen to restrict her residue clause in certain ways – for instance, by specifying that it should benefit her children alive at her death, and that the children of any predeceased children should take in equal shares per stirpes. However, although she could have, she did not exclude Alan’s children, nor was there any indication that she intended to treat her children then living, or their issue, differently from the issue of her then deceased child.

The court also considered a prior will made in 1993, which contained a clause with different wording than the residue clause in the 2014 Will, but that the court held expressed the same intent. As there was no suggestion that Jennifer and Jacob were not entitled to share under the 1993 Will, this evidence corroborated a finding that they should similarly benefit under the 2014 Will.

The court also looked to another clause in the 2014 Will, and found that it was consistent with an intention on Recia’s part to benefit all of her children alive at her death, or their issue. This other clause stated that if any beneficiary died before attaining the age of 21, without issue, their share should be divided amongst Recia’s issue in equal shares per stirpes – which would include Jacob and Jennifer – thereby supporting the finding that Recia intended Jacob and Jennifer to benefit from the share of the estate that would otherwise have gone to Alan.

The court also made some comments with respect to the admissibility of direct extrinsic evidence, and ultimately did not admit much of the evidence from Laura, Jacob, Jennifer, and Recia’s brother, Larry Cohen, who was one of the executors of her estate. Following the case law in Rondel v Robinson Estate, 2011 ONCA 493, Barlow v Parks Estate, [1980] OJ No 266, and Re Burke, 1959, [1960] OR 26, the court considered the circumstances surrounding the preparation and execution of Recia’s will in its interpretation of the clause in question.

Thanks for reading.

Ian Hull

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