The Superior Court of Justice recently grappled with an unusual set of circumstances involving a long-deceased American testator and an ambiguous will in Spencer v. Spencer, 2025 ONSC 2687.
The Deceased, a resident of Michigan, passed away in 1995, following the death of his wife in 1990. Despite this, the couple remained the registered owners of a cottage in Shrewsbury, Ontario. In 2023, their grandson, the Applicant, was appointed the personal representative of the Deceased’s Estate, so that he could then have the Letters of Authority resealed in Ontario to deal with the cottage.
However, because of an ambiguous clause in the Deceased’s Will, it remained unclear who the beneficiaries of the Estate were with respect to the cottage and the Applicant was therefore unable to proceed with resealing.
Article 7 of the Deceased’s Will, dealing with the residue of his Estate, only explained what would happen if one of his five children, as the residual beneficiaries, were to predecease him. The Will was silent on the other four children, one of whom did in fact predecease the Deceased.
The Court’s analysis centred on whether Article 7 of the Will was subject to s. 31, the anti-lapse provision, of the Succession Law Reform Act, whether it constituted a class gift (for a more in-depth analysis of class gifts, see Suzana Popovic-Montag’s recent blog here), and the implications for the predeceased child’s share.
In its deliberation, the Court scrutinized the phrase “share and share alike” used in Article 7, which it notes typically suggests a per capita distribution. However, in considering the familial context, the Court found a per stirpes distribution more fitting, that is, one share per branch of the family, to be distributed among the members of the branch. This would ensure that the predeceased child’s share passes to his descendants and aligns with the testator’s presumed intentions.
The Court concluded that the Will did not create a class gift, as the beneficiaries were explicitly named, and no contrary intention was evident that would prevent the gift from passing to the beneficiaries’ issue.
As we have frequently discussed in our blogs (see for example here), the importance of clear and precise language in estate planning is crucial to avoid costly legal proceedings, and ensure the testator’s intentions are honoured.
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