Solicitor’s Tip December 2025
Anti-lapse provisions like section 31 of the Succession Law Reform Act rest on a legislative presumption[1] – that the testator would prefer to benefit the family of certain beneficiaries, should the beneficiary predecease the testator, rather than benefit the testator’s own residuary beneficiaries or have the gift pass on an intestacy.[2] Accordingly, a gift left to either the testator’s child, grandchild or sibling is to be inherited by that beneficiary’s spouse and/or issue in the beneficiary’s place under section 31, as if the beneficiary had died intestate and debt-free immediately after the testator.
In cases where a client’s intentions do not align with section 31 – for example, the client does not want to benefit their son-in-law or daughter-in-law after their own child has passed away, or is concerned about creating disproportionate entitlements amongst family members – the application of this rule can be ousted in a variety of ways. This month’s Solicitor’s Tip highlights six will-drafting strategies that can be used to ensure that a will clearly displaces the anti-lapse rule.
1. Identify Substitute Beneficiaries
One of the most direct ways to oust section 31 of the SLRA is to name substitute beneficiaries in the client’s will, applicable in the event that a beneficiary predeceases the testator. Drafting the will this way ought to prevent litigation addressing whether section 31 of the SLRA is applicable, and should also ensure that the client’s estate passes in accordance with their wishes. Identifying a substitute beneficiary is critical, as simply drafting a will to state that a gift is “not to lapse” has been insufficient to displace the anti-lapse rule in past cases.[3]
2. Expressly Exclude the Operation of Section 31
Another way to draft a will to express a contrary intention is to include a clause which explicitly states that the client does not intend section 31 to apply to any gifts, or alternatively, specific gifts, in the will. Because wills must be read as a whole when interpreting any specific clause, in order to ascertain the testator’s subjective intention, such a clause ought to override the anti-lapse rule.[4] However, to ensure that the clause is effective, it should also address how gifts that would otherwise be subject to section 31 are to be distributed if a beneficiary predeceases the client.
3. Expressly Exclude Individuals Who Would Take Under Section 31
A will can also displace the anti-lapse rule by excluding individuals who would otherwise inherit under an anti-lapse distribution. For example, in Spencer v Spencer, a joint will left the residue of the testators’ estate to their four children and one grandson equally, and also provided that if the grandson’s mother predeceased the testators, her share was to be divided amongst her children “other than” the grandson who was already to inherit one-fifth of the residue. The court confirmed that the way the will was drafted demonstrated a clear intention to depart from the anti-lapse rule with respect to the share of the grandson’s mother. The court also held that excluding the one grandson from sharing a portion of his mother’s share of the residue, if she predeceased the testator, demonstrated an intent that the issue of the other residuary beneficiaries were to inherit their parent’s respective share through a stirpal distribution if any of the residuary beneficiaries predeceased the testator.[5]
4. Specify a Per Capita Distribution of the Gift
When a gift is shared amongst multiple beneficiaries, one way to prevent the application of the anti-lapse rule, should one of the beneficiaries predecease the testator, is to designate a per capita distribution. Last year in Mujanovic v. Bigovic, Justice Gibson interpreted a residuary will clause which directed a per capita distribution – and also defined per capita as the antithesis of per stirpes – finding that the clauseexpressed a contrary intention for the purposes of section 31 of the SLRA.[6] As a result, the share of the beneficiary who predeceased the testator was distributed on an intestacy, rather than being redirected to the beneficiary’s issue.
5. Utilize Class Gifts
Class gifts are another effective way to avoid the anti-lapse rule. When a gift is properly characterized as a class gift, the doctrine of lapse does not apply; instead, the surviving class members take the gift.[7] When utilizing this strategy, it is important to remember that the members of the class should not be named individually in the will clause. Referring to beneficiaries by name demonstrates a prima facie intention to benefit the beneficiaries individually, rather than as a class, in which case the gift would be subject to the doctrine of lapse and could engage the anti-lapse rule.[8]
6. Leave a Gift to Beneficiaries as Joint Tenants
If a will expressly gifts property to multiple beneficiaries as joint tenants, the anti-lapse rule should also not apply. For example, in Gamble, the High Court found that the estate residue consisting of personalty was left to two beneficiaries as joint tenants, and that the deceased beneficiary’s share of the residue did not lapse but instead passed by right of survivorship to the surviving joint tenant.[9] Although Gamble specifically involved personalty, the reasoning supports the conclusion that section 31 will not apply to a gift expressly left to multiple beneficiaries as joint tenants.
Conclusion
While section 31 of the SLRA offers a default framework for distributing testamentary gifts when the testator is predeceased by certain beneficiaries, this Solicitor’s Tip demonstrates that there are a variety of ways to overcome the anti-lapse rule,[10] including:
- naming substitute beneficiaries in the will;
- expressly stating that the testator does not intend section 31 to apply to their will;
- expressly excluding individuals who would take under section 31 from sharing in the estate, should the testator be predeceased by a specific beneficiary;
- specifying that gifts left to multiple beneficiaries are to be distributed per capita;
- utilizing class gifts; and
- leaving gifts to multiple beneficiaries as joint tenants.
There are also advantages to using these strategies to express a testator’s intentions, rather than relying on the anti-lapse rule – not only will such will drafting achieve the estate distribution desired by the client, but it should also reduce the risk of future litigation, assuming the will is otherwise valid.
[1] RSO 1990, c S.26, s 31 [SLRA].
[2] See Alberta Law Reform Institute, Wills and the Legal Effects of Changed Circumstances, Final Report No. 98 (August 2010), online: <https://www.alri.ualberta.ca/wp-content/uploads/2020/05/fr098.pdf> at para 362.
[3] See Greenwood, Re, [1912] 1 Ch 392.
[4] See Devonport v Devonport, 2024 ONSC 6764 at para 18, aff’d 2025 ONCA 753.
[5] Spencer v Spencer et al,2025 ONSC 2687 [Spencer] at paras 13-14, 22-37.
[6] 2024 ONSC 1093 at paras 4-5, 9, 15 [Mujanovic].
[7] See Mujanovic, ibid at para 16.
[8] Spencer, supra note 5at para 32.
[9] Gamble, Re, 1906 CarswellOnt 640, 13 OLR 299 (HC).Thecourt held at para 5: “As to so much of the residue as consists of personalty, the residuary bequest is to the legatees as joint tenants, and the survivor is therefore entitled to the whole of it.”
[10] Please note that this Tip is not intended to serve as an exhaustive way of demonstrating a contrary intention for the purpose of section 31 of the SLRA, supra note 1; there may be additional ways to draft a will to oust the anti-lapse rule.