The Globe and Mail recently interviewed a man living in British Columbia who may be the son of John F. Kennedy.
The article made me reflect on the different ways solicitors deal with persons born outside of marriage when drafting a Will. Since March 1978, persons born inside of marriage and outside of marriage are entitled to share equally in an intestacy estate. In a testate administration, unless a contrary intention is included in the Will, any words identifying a class of persons such as “issue” and “children” includes persons born outside of marriage.
However, a testator may want to exclude persons born outside of marriage from being considered as part of a gift class in order to remove the obligation on an executor to search for members of the gift class who were born outside of marriage.
Given the prevalence of common law relationships, to include a boilerplate clause excluding persons born outside of marriage from inclusion in the gift class may result in the unintentional disinheritance of grandchildren or great-grandchildren. Any exclusion clause has to be considered carefully.
The upcoming LSUC CLE program, The Annotated Will, being held on February 21, 2008, discusses how to deal with difficult drafting issues. The two hour program is being chaired by Laura Kerr, Jennifer A. Pfuetzner, and Corina S. Weigl and promises to offer valuable advice on avoiding common drafting errors.
Have a nice day,
Listen to Estate Administration
This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on what to expect in the early stages of estate administration.
Listen to The Process of Administering an Estate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.
While we hope for certainty in the law, the reality is often quite different.
Clients are often told that going to court is a crap shoot, and outcomes are anything but certain.
To illustrate this point, we might refer to a Superior Court of Justice decision in Mladen Estate v. McGuire (2007 CanLII 10904).
There, the deceased left a will which gave the residue of her estate to an aunt, A (50%), and two cousins, B and C (25% each). A predeceased the deceased. The deceased’s intestate beneficiaries were five cousins: B and C and three others.
The question to be determined was whether A’s share was to be distributed to the two residuary beneficiaries, B and C, or the five next of kin.
The Court noted that the law in Ontario is that unless there is a contrary intention in the will, a lapsed residuary gift passes on an intestacy to the next of kin.
It appears clear that there was no contrary intention in the will. The Court stated that "In short, there is noting in the language of the Will itself that would allow me to conclude that if [the testator] was predeceased by [A], that she would have intended that [A’s] portion should go only to [B] and [C]."
Thus, it would seem to be clear that the failed gift to A would pass on an intestacy.
However, the Court held that it could consider the "surrounding circumstances" in order to determine whether there was a "contrary intention in the will". The Court found that the uncontradicted affidavit evidence was that the deceased considered B and C to be her only real cousins, and that the other cousins were virtual strangers to her. As a result, the Court concluded that based on this extrinsic evidence, the lapsed residue passed to B and C, and not on an intestacy.
The result appears to be contrary to what is a clear statement of the law. It illustrates that in litigation, very little can be taken as certain.
Read the transcribed copy of "The Rectification of a Will"
During Hull on Estates Episode #50, Sean Graham and Paul Trudelle discuss the rectification of an erroneous Will.
Sean and Paul also cover the importance of detailed documentation such as Solicitor’s notes and prior Wills, as well as Intestacy and Knowledge and Approval of the Will.
For relevant case law on rectification, please see:
- Re Black (1982), 37 O.R. (2d) 219, 38 O.R. (2d) 468 (Ont. H.C.), Tab 11.
- Re Sherin (1985), 18 E.T.R. 177 (Ont. H.C.J.), Tab 12
- Re Morris,  1 All E.R. 1057 (P.D.), Tab 6.
- Barylak v. Figol (1995), 9 E.T.R. (2d) 305 (O.C.G.D.) Tab 8