In The Bank of Nova Scotia Trust Company v Rogers, 2021 ONSC 1747, the Ontario Superior Court of Justice was tasked with interpreting provisions of Mirror Wills within the context of the public policy doctrine that prevents a person found criminally responsible for murder, from benefiting from his or her crime, and, from benefiting from the estate of the person(s) he or she has murdered.
In Rogers, Cameron Scott Rogers plead guilty to and was convicted for murdering both of his parents. Cameron was sentenced to two life sentences without the possibility of parole for 20 years.
The Bank of Nova Scotia, as Estate Trustee for the Estates of both of Cameron’s parents, brought an application seeking the Court’s direction regarding the distribution of the Estate. Namely, should the residue of the Estates remain invested until Cameron dies, in order to ascertain if he has any surviving children, or, should the Estates be administered to the alternative beneficiaries.
Cameron’s parents left Mirror Wills which provided for their residue to be gifted to each other’s survivor, and, if the other has predeceased, then the residue was to be set aside into trust during Cameron’s lifetime. Upon the death of Cameron, the balance of the trust was to be distributed to Cameron’s issue then living, in equal shares per stirpes. If Cameron died without issue, the remainder of the trust was to be divided between Cameron’s three maternal uncles. The Wills left specific instructions regarding the uncles’ interests being used to purchase annuities.
The Children’s Lawyer, representing Cameron’s unborn/unascertained heirs, took the position that the alternate bequests to the uncles could not be accelerated, and rather, the residue should remain invested until it can be ascertained whether or not Cameron will have children. The Children’s Lawyer further took the position that acceleration in the circumstances would equate to varying the trust, which, in the circumstances, the Children’s Lawyer’s consent would be required, and would not be provided.
In arriving at its conclusion, the Court provided a helpful summary of the criminal forfeiture rule or the “slayer rule”. Some of the main points highlighted by the Court are summarized below.
Canadian jurisprudence has identified three different approaches to dealing with situations where the criminal forfeiture rule applies.
(1) The Deemed Death Approach
The Court will deem the murderer to have pre-deceased the testator such that the gift-over provisions in the Will apply. See Dhaliwall v Dhaliwall.
(2) Literal Reading of the Will Approach
The theory behind this approach is that the testator’s Will only provides for a gift-over to the alternative beneficiary in the event that the primary beneficiary actually predeceases the testator, but not in cases where the primary beneficiary is disentitled or barred from taking due to public policy. In such a case, the result is an intestacy. See Re Dreger.
(3) Implied Intention Approach
Under this approach, the court must examine what the testator’s intentions where at the time the Will was executed. In Brissette Estate v Brissette, [1991] OJ No. 1308 (Gen. Div.) the Court found that there was an implied intention that the Deceased’s husband be a legal beneficiary. As the husband was disentitled by public policy, the intention of the Deceased was that if her husband could not receive the residue, it should go to the alternative beneficiaries named under the Will. In this way, an intestacy is avoided.
After reviewing the above, the Court then started its interpretation from the point that courts will seek to avoid an interpretation of a Will that will result in intestacy, though, such an objective should not be maintained at all costs.
The Court then looked to what the intentions of Cameron’s parents were at the time the Mirror Wills were executed, concluding that it was clear that they wanted to keep their assets within their family for as long as possible, before passing to third party charities.
The Court ultimately determined that the implied intention approach was to be preferred, holding that it:
- keeps the analysis within the wills and allows their contingencies to play out,
- avoids intestacy where possible,
- is the least intrusive approach, as it reflects more precisely what has happened, and focuses on the intentions of the testators, and
- respects the subjective intentions of the testators which were to create contingent levels of beneficiaries and maintain control through the use of the “gifts over” avoiding intestacy.
Acceleration
Acceleration is the concept that a subsequent interest accelerates if a prior interest is disclaimed, surrendered or otherwise terminated. The Court found that acceleration is appropriate in the circumstances. The Court rejected the Children’s Lawyer’s argument citing Waters’ Law of Trusts in Canada, as support for the view that acceleration should not be viewed as being tantamount to variation.
In addition to the above interpretation tools, the Court used the armchair approach to consider what the testators would have wanted, had they been aware of Cameron’s disentitlement and the exact basis for it. The Court further placed weight on the language of the Wills which specifies Cameron’s issue “then living,” concluding that at the time that Cameron became disentitled he did not have children “then living” such that both gifts failed. Finally, the Court reasoned that the result of keeping the residue in trust until Cameron’s death would likely eliminate the possibility of the uncles receiving any share of the Estates (as they would likely pre-decease Cameron), something the Court found to be contrary to the testator’s intention to keep the Estates in the family.
The Court ultimately ordered Cameron disentitled, and applied the doctrine of acceleration such that the uncles would take under the annuity provisions of the Wills.
For more on the Slayer Rule see here and here.
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