The importance of careful will preparation, with the assistance of counsel, cannot be sufficiently underscored. Certain mistakes can result in a testator’s wishes being unfulfilled.  One such instance is when (i) the will (in error) fails to dispose of the residue, and (ii) there is an exclusionary provision in the will (e.g. a provision expressly excluding the testator’s spouse/children as beneficiaries). The outcome – in Ontario at least – would be that the excluded spouse/children are entitled to inherit the residue as intestate beneficiaries under the SLRA.

In Re Snider, a testator’s will barred his wife and children from inheriting his estate, but the will failed to dispose of the residue, such that the wife and children were nonetheless entitled to benefit as intestate beneficiaries. In reaching its decision, the Ont. S.C.J. reviewed the leading English case law that, in essence, pronounces that where there is no gift of the undisposed-of residue a testator cannot by negative words alone exclude next of kin from participating in it. The testator would need to give the residue to someone else for the intention to be given effect.  If he does not do that the next of kin have, by law, the right of intestate succession to the residue.

In contrast stands the Manitoba Court of Queen’s Bench case of Mathers v Murname, [1996] MJ No 604 (MBQB), where the MBQB held that the intestate beneficiaries could be excluded from sharing in the estate. In that case, the deceased failed to include provisions relating to her residue, but expressly disentitled her two sons from any inheritance.

Mathers does not seem to have been cited in any Ontario decisions, and it has not found favour in other courts.  In Re Butler Estate, 2008 NLCA 39, the Newfoundland and Labrador Court of Appeal found Mathers to be unpersuasive.  The NLCA saw the Mathers decision as being contrary to existing law, and it refused to accept it as authority for the broad principle that a will can modify the application of a statutory intestacy scheme.

It therefore appears that Mathers is an outlier that does not modify settled English case law that a person whose will fails to dispose of residue cannot avoid the statutory scheme for intestacy via an exclusionary provision.

Thanks for reading and have a good day,
Natalia Angelini