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Will Drafting – Dot the I’s and Cross the T’s: Re Vaudrey

Re Vaudrey, 2019 ONSC 7551 (CanLII), http://canlii.ca/t/j49w0

In the above case,[1] the deceased died in 2018, having executed a will in 2005.  He was predeceased by his ex-wife, Ethel, who died in 2007. The deceased had two daughters, Sheila and Kristin. Sheila died in 2013. She never married and she did not have any children.  As such, the deceased was survived by his remaining daughter, Kristin, with whom he was estranged for many years. The deceased had no other children.

The deceased’s will which was not drafted by an attorney provided the following:

  • Sheila is to be appointed as estate trustee and inherit the residue of the Estate (“Residue”) — if she survives the deceased by 30 days; and
  • If Sheila does not so survive the Deceased, then Ethel is to be appointed as trustee and inherit the Residue — if she survives the Deceased by 30 days.[2]

The Deceased made no provision in his Will for the residue of his estate in the event that neither Sheila nor Ethel survived him by 30 days, which is what transpired.

Furthermore, the will specifically stated that Kristin, or any of her descendants,  were not to inherit whatsoever from the deceased’s estate.

Kristin brought a court application to determine the validity of the will, and whether the terms of the will result in an intestacy and, if so, who is the heir-at-law of the residue?

The court declared that the deceased’s will was valid as it met the requirements for execution as set out in Section 4(1) of the Succession Law Reform Act (“SLRA”).

It also determined that the provision wishing to exclude Kristin from benefiting from his estate did not invalidate the will:

“[a]n individual is entitled to direct how his or her estate will be distributed, including that the individual may specifically exclude someone as a beneficiary. The exclusion that the Deceased attempted to create will, however, only be effective if (a) the Will provides for the Residue to be given to someone else, and (b) the person(s) to whom the Residue is given survives the Deceased (R. v. Snider (1974), 3 O.R. (2d) 541 (H.C.J.))”[3]

As stated above, the deceased made no provision for distribution of the residue in the event he was pre-deceased by both Sheila and Ethel. The court turned to Section 47 of the SLRA to determine how the residue was to be distributed. Section 47 addresses distribution on an intestacy basis where the deceased is survived by his or her spouse and issue:

  • Subject to subsection (2), where a person dies intestate in respect of property and leaves issue surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her.
  • Where any issue of the degree entitled under subsection (1) has predeceased the intestate, the share of such issue shall be distributed among his or her issue in the manner set out in subsection (1) and the share devolving upon any issue of that and subsequent degrees who predecease the intestate shall be similarly distributed.

Section 47(2) did not apply in this circumstance as the deceased was pre-deceased by his spouse, Sheila, did not have any children.

The court determined that the Deceased’s intention could not be followed because he made no provision for the residue of his estate in the event that both Sheila and Ethel pre-deceased him. Therefore, the residue passed on a partial intestacy and Kristin was found to be the heir- at- law of the residue. The court stated that: A testator cannot, by mere declaration, alter the scheme of devolution applying to intestacies as set out in the SLRA.”[4]

[1] Re Vaudrey 2019 ONSC 755

[2] Re Vaudrey, at para 6

[3] Re Vaudrey, at para 22

[4] Re Vaudrey, at para 22

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