The ‘Slayer Rule’: The Bank of Nova Scotia Company v. Rogers[1]
It is a fundamental rule of public policy that crime should not pay and therefore if a person kills another feloniously, the murderer should not be allowed to keep property acquired as a result of the victim’s death. The rule is a simple one and applied without exception in many cases. The court did so in The Bank of Nova Scotia v. Rogers too. However, while denying the murderer benefits flowing from the crime, it is sometimes more difficult determining who should get those benefits. That was the main issue in Rogers.
The rule applies whenever someone receives benefits in consequence of his criminal act.[2] Thus, it applies when a beneficiary murders a testator,[3] when an heir murders a person who dies intestate,[4] when a joint tenant kills the other joint tenant,[5] when a beneficiary of an insurance policy kills the insured,[6] and when the beneficiary of social insurance benefits kills the insured.[7] The rule also applies if a person kills someone to prevent the execution of a will and who thereby benefits from the death.[8] It even applies to a person entitled to a remainder interest who kills the life tenant.[9] The killer will also lose the right to probate the victim’s will.[10]
Of course the rule does not apply if the killing was not felonious, for example if the killer was insane,[11] was not criminally responsible because of a mental disorder,[12] or if it was not intentional.[13]
When the rule does apply, in theory at least, the property may still pass to the killer, but she then holds it upon constructive trust for the persons next in line. This may be illustrated by the case of a joint tenant who kills the other tenant. The killer will still take the legal title to whole interest, but equity will impose a constructive trust on him. The killer must hold the half interest derived from the victim in trust for the persons next in line (typically the next of kin), but he holds the other half interest in trust for himself. It is not forfeited.[14]
The imposition of a constructive trust is often not mentioned in the cases, but it forms a sound theoretical basis for the non-forfeiture of interests to which the killer remains entitled and for the forfeiture of the interests of the victim.
The facts in the Rogers case were complex and that was the cause of some of the problems. Cameron Rogers was the adopted son of David and Merrill Rogers. He killed his parents in 2016, pleaded guilty to the killing in 2018, and was sentenced to two concurrent life sentences without the possibility of parole for 20 years. David had no other known relatives, but Merrill’s closest relatives were her three brothers, Stephen, Graham, and Gordon Gleddie. David and Merrill made reciprocal wills in 2014 in which they named each other estate trustees and The Bank of Nova Scotia Trust Company as alternative trustee. Apart from gifts of some personalty, they left the residue to the other person, but if the other person predeceased, then the estate trustee had to deal with the residue as follows:
- Retain the services of a counselor for Cameron.
- Rollover from any RSP, RIF, or LIRA to Cameron’s Registered Disability Savings Plan (‘RDSP’) to allowable contribution limits.
- Set aside the remaining residue in trust during Cameron’s life, and the Trustee shall:
(a) in its discretion pay income and capital for Cameron’s benefit; and
(b) accumulate any income each year for 21 years and then, in consultation with Cameron, pay the income to one or more of the following:
(i) Autism Canada Foundation;
(ii) Salvation Army Ottawa Booth Centre;
(iii) An organization that treats mental health or addictions.
- On Cameron’s death, the Trustee shall:
(a) distribute the balance of the trust fund to Cameron’s issue then living in equal shares; and
(b) if Cameron has no issue then living, to distribute the balance into three equal shares for Merrill’s three brothers, and to purchase a life annuity for each of them, with a guarantee period of not less than five years, and with the irrevocable beneficiary of each annuity to be the Autism Canada Foundation and an organization that treats mental health and additions to be selected by the trustees, in equal shares.
- If any portion of the estate remains undistributed, the Trustee shall distribute it in equal shares to the charities mentioned in clause 4(b).
The estate trustee brought an application for direction about how the estate should be distributed. At the time, Cameron was 25 years old and would not be released until he would be in his early forties.
The court held first, of course, that under the slayer rule Cameron was unable to benefit under his parents’ wills. But that left the question about how the estates should be distributed. The court identified three approaches:[15]
(a) The Deemed Death Approach
This was the approach used in Dhaliwall v. Dhaliwall.[16] The victim’s will provided that her property would pass to her husband and if he predeceased her to their children. The husband killed the testator. The court deemed the husband to have predeceased his wife, so that the children could take in accordance with the will.
(b) A Literal Reading of the Will Approach
This was the approach followed in Re Dreger.[17] The husband and wife made reciprocal wills. The wife’s will directed that her property passed to her husband, but if he predeceased her there was a gift over to other beneficiaries. The husband killed his wife before committing suicide. Thus, he clearly did not predecease his wife. It followed that the wife died intestate according to the court. But since the wife predeceased the husband, his estate was distributed according to the gift over provision in his will.
(c) Implied Intention Approach
This approach was followed in Brissette Estate v. Brissette.[18] The husband murdered his wife. Her will left the residue of her estate to him, but if he predeceased her or failed to survive her by 30 days, the residue was to be paid to other persons named in the will. If the result of what happened was an intestacy, the wife’s mother would inherit her estate. The court held that it should not find in favour of an intestacy. It found an implied condition in the testator’s will that the husband had to be a legal beneficiary. Since he was not, because he could not inherit from her for public policy reasons, the alternative beneficiaries named in the will should be allowed to take, as they were next in line. In the court’s opinion, this was in accord with the testator’s will.[19]
Justice Labrosse review each of these approaches. Each of them is based on a fiction or an assumption to reach a desired result. But ultimately he adopted the implied intention approach because it focuses on the intention of the testator and allows alternative bequests to take effect, while at the same time avoiding an intestacy. The implied intention in this case is that Cameron has to be a legal beneficiary, that is, capable in law of taking the benefit bequeathed to him. Cameron was not a legal beneficiary, having lost his entitlement through the application of the slayer rule. Thus, in accordance with the testators’ intentions, the gifts over should take effect. In effect, they are accelerated.
However, this presented a problem, since the first gift over was to Cameron’s children. So the question arose whether the estates had to be kept in abeyance to see if Cameron might eventually have children. The court held that this should not be done. It emphasized the importance of the public policy rule and held, in effect, that it overrode keeping the estates on hold for the possibility that Cameron might have children in the future. The court applied the “armchair rule” and concluded that if David and Merrill had been aware of Cameron’s disentitlement they would not have wanted the estates kept in limbo. This might even fuel Cameron’s future decision to have children. With great respect, this is a misapplication of the ‘armchair rule’. It requires the court to look at evidence of surrounding circumstances that the testators were aware of when they made their wills. I agree that they might have had concerns about Cameron’s possible disabilities, but they do not seem to have turned their minds to David’s possible future disentitlement and the effect that might have on the gift over to the children and it my opinion it is wrong to ascribe an intention to them which they seem not to have considered.
That does not mean that the result is incorrect, but the court could have reached it in a different way. It could have said public policy considerations, coupled with the successive gifts over meant that it would be wrong to hold up the later gifts over because of the remote possibility that there might be children at some future point who could take under the first gift over. In that way the court would have given effect to the slayer rule and the testator’s intentions, while at the same time dismissing unlikely future eventualities. Consequently, the gifts under the gifts over to Merrill’s brothers should be accelerated.
In the result, the court held:
- Cameron was disentitled;
- Merrill’s three brothers became entitled as per the terms of the annuities;
- the estate trustee had power to dispose of personal property and pay the proceeds into the residue;
- the estate trustee was not relieved of retaining a counsellor for Cameron;
- the estate trustee was not required to transfer proceeds from David and Merrill’s RSPs, RIF’s, and LIRA’s into Cameron’s RDSP; instead they became part of the residue and the estate trustee had to recover any moneys already paid into the RDSP;
- the estate trustee is not required to keep the residue invested during Cameron’s lifetime and apply it for his benefit, the moneys should be applied as if Cameron had predeceased leaving no issue;
- The alternative beneficiaries became entitled as if Cameron predeceased his parent with no issue living at his death.
The terms of the wills made this a particularly difficult case to resolve, but I believe that the court ultimately resolved it satisfactorily.
—
[1] 2021 ONSC 1747.
[2] For in depth discussions of the rule, see Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters / Carswell, 2021), §12.4; and Oosterhoff on Trusts, 9th ed. by Albert H. Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters / Carswell, 2019), §11.5.2.
[3] McKinnon v. Lundy (1895), 24 S.C.R. 147.
[4] Nordstrom v. Baumann, [1962] S.C.R. 147; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.); Re Charlton (1968), 3 D.L.R. (3d) 623 (Ont. C.A.).
[5] Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Singh Estate v. Bajrangie-Singh (1999), 29 E.T.R. (2d) 302 (Ont. S.C.J.)
[6] Cleaver v. Mutual Reserve Fund Life Association, 1892] 1 A.B. 147 (C.A.); Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87/
[7] R. v. National Insurance Commissioner, Ex parte Connor, [1981] 1 All E.R. 769 (Q.B.)
[8] Latham v. Father Devine, 299 N.Y. 22, 85 N.E, 168 (1942).
[9] A.W. Scott and W.F. Fratcher, The Law of Trusts, 4th ed. (Boston: Little, Brown and Company, 1987-91), §493.1.
[10] Re Hall’s Estate, [1914] P. 1 (C.A.).
[11] See, e.g., Manitoba (Public Trustee) v. LeClerc (1981), 123 D.L.R. (3d) 650 (Man. Q.B.).
[12] Dhingra v. Dhingra Estate, 2012 ONCA 261.
[13] Gray v. Barr, [1971] 2 Q.B. 554 (C.A.), at 581, per Salmon L.J.
[14] See Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.).
[15] Discussed in Re Bowlen Estate, 2001 ABQB 304 at paras. 39-50.
[16] (1986), 30 D.L.R. (4th) 420 (B.C.S.C.).
[17] (1976), 12 O.R. (2d) 371 (H.C.J.).
[18] (1991), 42 E.T.R. 173 (Ont. Gen. Div.).
[19] For a similar case, see Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218. The testator, who was his mother left her estate to her son and if he did not survive her to the Public Archives of Nova Scotia. The son killed his mother and the court held that the estate should be distributed to the alternative beneficiary.
—
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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Written by: Albert Oosterhoff
Posted on: June 21, 2021
Categories: Commentary, WEL Newsletter
The ‘Slayer Rule’: The Bank of Nova Scotia Company v. Rogers[1]
It is a fundamental rule of public policy that crime should not pay and therefore if a person kills another feloniously, the murderer should not be allowed to keep property acquired as a result of the victim’s death. The rule is a simple one and applied without exception in many cases. The court did so in The Bank of Nova Scotia v. Rogers too. However, while denying the murderer benefits flowing from the crime, it is sometimes more difficult determining who should get those benefits. That was the main issue in Rogers.
The rule applies whenever someone receives benefits in consequence of his criminal act.[2] Thus, it applies when a beneficiary murders a testator,[3] when an heir murders a person who dies intestate,[4] when a joint tenant kills the other joint tenant,[5] when a beneficiary of an insurance policy kills the insured,[6] and when the beneficiary of social insurance benefits kills the insured.[7] The rule also applies if a person kills someone to prevent the execution of a will and who thereby benefits from the death.[8] It even applies to a person entitled to a remainder interest who kills the life tenant.[9] The killer will also lose the right to probate the victim’s will.[10]
Of course the rule does not apply if the killing was not felonious, for example if the killer was insane,[11] was not criminally responsible because of a mental disorder,[12] or if it was not intentional.[13]
When the rule does apply, in theory at least, the property may still pass to the killer, but she then holds it upon constructive trust for the persons next in line. This may be illustrated by the case of a joint tenant who kills the other tenant. The killer will still take the legal title to whole interest, but equity will impose a constructive trust on him. The killer must hold the half interest derived from the victim in trust for the persons next in line (typically the next of kin), but he holds the other half interest in trust for himself. It is not forfeited.[14]
The imposition of a constructive trust is often not mentioned in the cases, but it forms a sound theoretical basis for the non-forfeiture of interests to which the killer remains entitled and for the forfeiture of the interests of the victim.
The facts in the Rogers case were complex and that was the cause of some of the problems. Cameron Rogers was the adopted son of David and Merrill Rogers. He killed his parents in 2016, pleaded guilty to the killing in 2018, and was sentenced to two concurrent life sentences without the possibility of parole for 20 years. David had no other known relatives, but Merrill’s closest relatives were her three brothers, Stephen, Graham, and Gordon Gleddie. David and Merrill made reciprocal wills in 2014 in which they named each other estate trustees and The Bank of Nova Scotia Trust Company as alternative trustee. Apart from gifts of some personalty, they left the residue to the other person, but if the other person predeceased, then the estate trustee had to deal with the residue as follows:
(a) in its discretion pay income and capital for Cameron’s benefit; and
(b) accumulate any income each year for 21 years and then, in consultation with Cameron, pay the income to one or more of the following:
(i) Autism Canada Foundation;
(ii) Salvation Army Ottawa Booth Centre;
(iii) An organization that treats mental health or addictions.
(a) distribute the balance of the trust fund to Cameron’s issue then living in equal shares; and
(b) if Cameron has no issue then living, to distribute the balance into three equal shares for Merrill’s three brothers, and to purchase a life annuity for each of them, with a guarantee period of not less than five years, and with the irrevocable beneficiary of each annuity to be the Autism Canada Foundation and an organization that treats mental health and additions to be selected by the trustees, in equal shares.
The estate trustee brought an application for direction about how the estate should be distributed. At the time, Cameron was 25 years old and would not be released until he would be in his early forties.
The court held first, of course, that under the slayer rule Cameron was unable to benefit under his parents’ wills. But that left the question about how the estates should be distributed. The court identified three approaches:[15]
(a) The Deemed Death Approach
This was the approach used in Dhaliwall v. Dhaliwall.[16] The victim’s will provided that her property would pass to her husband and if he predeceased her to their children. The husband killed the testator. The court deemed the husband to have predeceased his wife, so that the children could take in accordance with the will.
(b) A Literal Reading of the Will Approach
This was the approach followed in Re Dreger.[17] The husband and wife made reciprocal wills. The wife’s will directed that her property passed to her husband, but if he predeceased her there was a gift over to other beneficiaries. The husband killed his wife before committing suicide. Thus, he clearly did not predecease his wife. It followed that the wife died intestate according to the court. But since the wife predeceased the husband, his estate was distributed according to the gift over provision in his will.
(c) Implied Intention Approach
This approach was followed in Brissette Estate v. Brissette.[18] The husband murdered his wife. Her will left the residue of her estate to him, but if he predeceased her or failed to survive her by 30 days, the residue was to be paid to other persons named in the will. If the result of what happened was an intestacy, the wife’s mother would inherit her estate. The court held that it should not find in favour of an intestacy. It found an implied condition in the testator’s will that the husband had to be a legal beneficiary. Since he was not, because he could not inherit from her for public policy reasons, the alternative beneficiaries named in the will should be allowed to take, as they were next in line. In the court’s opinion, this was in accord with the testator’s will.[19]
Justice Labrosse review each of these approaches. Each of them is based on a fiction or an assumption to reach a desired result. But ultimately he adopted the implied intention approach because it focuses on the intention of the testator and allows alternative bequests to take effect, while at the same time avoiding an intestacy. The implied intention in this case is that Cameron has to be a legal beneficiary, that is, capable in law of taking the benefit bequeathed to him. Cameron was not a legal beneficiary, having lost his entitlement through the application of the slayer rule. Thus, in accordance with the testators’ intentions, the gifts over should take effect. In effect, they are accelerated.
However, this presented a problem, since the first gift over was to Cameron’s children. So the question arose whether the estates had to be kept in abeyance to see if Cameron might eventually have children. The court held that this should not be done. It emphasized the importance of the public policy rule and held, in effect, that it overrode keeping the estates on hold for the possibility that Cameron might have children in the future. The court applied the “armchair rule” and concluded that if David and Merrill had been aware of Cameron’s disentitlement they would not have wanted the estates kept in limbo. This might even fuel Cameron’s future decision to have children. With great respect, this is a misapplication of the ‘armchair rule’. It requires the court to look at evidence of surrounding circumstances that the testators were aware of when they made their wills. I agree that they might have had concerns about Cameron’s possible disabilities, but they do not seem to have turned their minds to David’s possible future disentitlement and the effect that might have on the gift over to the children and it my opinion it is wrong to ascribe an intention to them which they seem not to have considered.
That does not mean that the result is incorrect, but the court could have reached it in a different way. It could have said public policy considerations, coupled with the successive gifts over meant that it would be wrong to hold up the later gifts over because of the remote possibility that there might be children at some future point who could take under the first gift over. In that way the court would have given effect to the slayer rule and the testator’s intentions, while at the same time dismissing unlikely future eventualities. Consequently, the gifts under the gifts over to Merrill’s brothers should be accelerated.
In the result, the court held:
The terms of the wills made this a particularly difficult case to resolve, but I believe that the court ultimately resolved it satisfactorily.
—
[1] 2021 ONSC 1747.
[2] For in depth discussions of the rule, see Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters / Carswell, 2021), §12.4; and Oosterhoff on Trusts, 9th ed. by Albert H. Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters / Carswell, 2019), §11.5.2.
[3] McKinnon v. Lundy (1895), 24 S.C.R. 147.
[4] Nordstrom v. Baumann, [1962] S.C.R. 147; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.); Re Charlton (1968), 3 D.L.R. (3d) 623 (Ont. C.A.).
[5] Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Singh Estate v. Bajrangie-Singh (1999), 29 E.T.R. (2d) 302 (Ont. S.C.J.)
[6] Cleaver v. Mutual Reserve Fund Life Association, 1892] 1 A.B. 147 (C.A.); Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87/
[7] R. v. National Insurance Commissioner, Ex parte Connor, [1981] 1 All E.R. 769 (Q.B.)
[8] Latham v. Father Devine, 299 N.Y. 22, 85 N.E, 168 (1942).
[9] A.W. Scott and W.F. Fratcher, The Law of Trusts, 4th ed. (Boston: Little, Brown and Company, 1987-91), §493.1.
[10] Re Hall’s Estate, [1914] P. 1 (C.A.).
[11] See, e.g., Manitoba (Public Trustee) v. LeClerc (1981), 123 D.L.R. (3d) 650 (Man. Q.B.).
[12] Dhingra v. Dhingra Estate, 2012 ONCA 261.
[13] Gray v. Barr, [1971] 2 Q.B. 554 (C.A.), at 581, per Salmon L.J.
[14] See Schobelt v. Barber (1966), 60 D.L.R. (2d) 519; Re Gore (1971) 23 D.L.R. (3d) 534 (Ont. H.C.).
[15] Discussed in Re Bowlen Estate, 2001 ABQB 304 at paras. 39-50.
[16] (1986), 30 D.L.R. (4th) 420 (B.C.S.C.).
[17] (1976), 12 O.R. (2d) 371 (H.C.J.).
[18] (1991), 42 E.T.R. 173 (Ont. Gen. Div.).
[19] For a similar case, see Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218. The testator, who was his mother left her estate to her son and if he did not survive her to the Public Archives of Nova Scotia. The son killed his mother and the court held that the estate should be distributed to the alternative beneficiary.
—
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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