In interpreting a will, the Court will strive to avoid an intestacy.  A recent Ontario decision demonstrates the power that courts have to infer a contrary intention to avoid unjust circumstances.  

Re: Estate of Constance Evelyn Stevenson 2022 ONSC 6416

In this case, the Estate Trustee asked the court for directions with respect to a residuary gift that was left in the deceased’s Last Will.  The deceased, Connie, passed away in 2016, and her last will was executed in 1983. 

The Will divided the residue of the estate into two shares: Share 1 and Share 2.  Connie’s predeceased sister Mildred, was named as the beneficiary of these shares.    Share 2 contained a gift over provision, naming alternate beneficiaries in the event that Mildred predeceased Connie.  Share 1, however, did not.

The court was asked to decide if Share 1 should be distributed to Connie’s estate as an intestacy, or if any contrary intention could be found.  Distributing the funds to Mildred’s estate as an intestacy was not considered as her next-of-kin was not making claims to the money. 

On a partial intestacy, Connie’s estate would have been distributed to six-second cousins.  The court considered Connie’s relationship to this class during the time that the will was executed, and noted that she had only ever met two of them. 

The other option was to direct the funds of Share 1 to be distributed to Cynthia, the deceased’s only surviving stepchild.  Cynthia was among 4 alternate beneficiaries named in the will with respect to Share 2.  The court looked at Connie’s relationship with Cynthia and found that she considered her to be one of her closest relatives.  The fact that Cynthia was already named in the will, and her relationship with the deceased weighed heavily in the court’s decision. 

Despite the lack of clear textual evidence in the will to indicate a contrary intention, Justice Broad was nonetheless able find that Connie had intended Cynthia to receive the funds of Share 1 given the circumstances:      

“In considering whether there is a contrary intention in the will to a lapsed residual gift, the court may have regard to whether there is anything in its terms that would indicate that the testator did not intend to dispose of her entire estate and whether she had a special connection and relationship with her named residuary beneficiaries …I am therefore to utilize the armchair rule to attempt to give effect to Connie’s wishes at the time that the Will was made and determine whether there is a “contrary intention in the will” respecting the disposition of Mildred’s First Share, in the event that Mildred predeceased her.”