Section 31 of the Succession Law Reform Act, also known as the anti-lapse provision, is a statutory exception to the common law doctrine of lapse. Under the common law, a gift will lapse if it is left to a beneficiary who predeceased the testator, either falling into the residue of the estate or, if a residual gift lapses, passing on intestacy. For gifts subject to the anti-lapse rule, however, the legislation instead provides for a substitutionary gift to the beneficiary’s next of kin. As recently noted in Dokis v Burgaretta et al, 2025 ONSC 4287:
“What s. 31 does is mandate that where the gift is to a child, grandchild, brother, or sister of the testator who dies before the testator it shall not lapse but shall pass to their heirs unless a contrary intention appears.”
When section 31 is engaged, the issue of whether the testator expressed a “contrary intention” which ousts the anti-lapse rule can be contentious, as demonstrated by the Ontario Court of Appeal’s recent decision in Devonport v Devonport, 2025 ONCA 753.
The Court of Appeal’s take on the anti-lapse rule
In Devonport, a mother gifted real property “absolutely” to each of her children through her will. Section 31 of the SLRA was engaged in this case because the mother was predeceased by her son – the son’s widow applied for a declaration that the property left to him by his mother passed to her by virtue of the anti-lapse rule. The application was opposed by the testator’s surviving daughter, who stood to inherit the property as part of the residue of the estate if the court found that section 31 did not apply.
Justice Rees granted the widow’s application, finding that the will did not express a contrary intention, that the gift did not lapse, and that the property passed to the widow under section 31: see Devonport v Devonport, 2024 ONSC 6764.
The testator’s daughter appealed on the basis that the will reflected a contrary intention which ousted the application of section 31; however, the appeal was dismissed. The Court of Appeal affirmed that Justice Rees “correctly set out the principles applicable to interpreting the terms of a will and determining the subjective intention of the testator,” and also found that the court made no palpable and overriding error in interpreting the salient will clause in the context of the will as a whole. As such, Justice Rees did not err in concluding “that the will did not show a contrary intention which would oust the application of the anti-lapse provision in s. 31 of the SLRA.”
While Justice Rees’ decision in Devonport, now affirmed on appeal, may seem straight-forward, it is significant for practitioners. As noted in Suzana Popovic-Montag’s article in The Probater earlier this year, Devonport affirms that surrounding circumstances at the time a will is made are to be considered under the armchair rule when interpreting a will in order to determine a testator’s subjective intent, including their intent with respect to the application of the anti-lapse rule. Practically speaking, this means that when determining whether the anti-lapse rule applies to a gift, it should be possible to look outside the will to determine the testator’s intent.
Section 31 does not oust the court’s power to construe a will
The Superior Court of Justice also recently provided an interesting insight into section 31 of the SLRA in Dokis v Burgaretta. In this case, the testator wrote a holograph will which left a number of gifts to beneficiaries who predeceased the testator. While section 31 of the SLRA applied to one of those gifts, the court had to determine whether the common law doctrine of lapse applied to the rest of them.
In interpreting the will, Justice Papageorgiou commented on the interplay between section 31 and the common law doctrine of lapse, noting that when section 31 does not apply, “the court may still consider the surrounding circumstances in determining whether the testator’s intention was that a lapsed gift would pass on intestacy or be distributed per capita to existing beneficiaries.”
This effectively means that the anti-lapse rule does not displace the court’s “ability to construe the testator’s intentions with respect to other types of beneficiaries” who predecease the testator, even if they “do not fall into those categories” established under section 31. “To put it another way,” Justice Papageorgiou held, “s. 31 does not oust the court’s ability to construe the will and seek to ascertain the testator’s intention with respect to a lapsed gift to individuals not included in s. 31, if that is possible taking into account the surrounding circumstances.”
Since the will in this case excluded certain family members who would have inherited had the testator passed away intestate, Justice Papageorgiou found that none of the gifts lapsed, as the testator would not have intended gifts to go on “intestacy because this would mean that family members that she specifically excluded would benefit.”
Takeaways for practitioners
In light of the court’s decision in Dokis, it is now clear that if a beneficiary predeceases the testator, section 31 does not oust the court’s power to consider whether the testator intended the gift to lapse, even if section 31 does not apply.
Moreover, when determining whether a gift lapses, the Court of Appeal made it clear in Devonport that interpretive principles applicable to wills, like the armchair rule, are to be used to determine the testator’s subjective intent.
Thank you for reading, and enjoy the rest of your day!
Ian.