The decision in Spencer v. Spencer (“Spencer”),[1] concerned the interpretation of a Last Will and Testament and whether the anti-lapse provision of the Succession Law Reform Act[2] (“SLRA”) applied, which prevents testamentary gifts from ‘failing’ and passing on an intestacy.
Background
Spencer concerned the estate of Floyd Kersey (the “Deceased”) of Michigan, U.S.A. who passed away in 1995. The Deceased was predeceased by his wife, Geraldine Kersey (“Geraldine”), who passed away in 1990. Before his passing, the Deceased executed a Last Will and Testament dated February 5, 1983 (the “Will”).[3]
Despite passing away three decades ago, the Deceased and Geraldine remained the registered owners of a cottage property in Shrewsbury, Ontario (the “Cottage”). Both estate trustees named in the Will were also deceased.[4]
The Applicant, Richard Spencer (the “Applicant”), is the Deceased’s grandson. By a Letter of Authority for Personal Representative, the State of Michigan Probate Court appointed the Applicant as personal representative of the Deceased’s Estate.[5]
The Applicant commenced the Application seeking the Will’s interpretation given he was unable to reseal the Letters of Authority for Personal Representative because it remained unclear who the beneficiaries of the Deceased’s estate were with respect to the Cottage in Canada.[6]
Pursuant to section 36(1) of the SLRA,[7] the Ontario Superior Court of Justice had jurisdiction over the matter given the issue concerned real property located within the province.[8]
The Will
The Applicant sought an interpretation of certain dispositive provisions in the Deceased’s Will provided for at Article 7. Article 7 of the Deceased’s Will reads as follows:
IT IS FURTHER OUR JOINT WILL that we give, devise, and bequeath all the rest, residue and remainder of any estate or property which we, or the survivor of us may die seized or possessed in Canada to our aforesaid children, and grandson, RICHARD SPENCER, DIANNA M. SPENCER, ROBERT G. KERSEY, PAULETTE GAMBREL, and LANE S. KERSEY, equally, share and share alike; provided, however, that should our daughter DIANNA M. SPENCER predecease us, then her share of said property shall be divided equally among her children, share and share alike, other than RICHARD SPENCER. [emphasis added]
The beneficiaries provided for in Article 7 are the Deceased’s children save and except for the Applicant, as the Deceased’s grandson and Dianna Spencer’s son. Of significance, of the five beneficiaries named in Article 7, the Deceased only directed his attention to what would happen if Dianna Spencer predeceased him.[9]
All of the beneficiaries named in Article 7 of the Deceased’s Will are still alive, but for Robert G. Kersey (“Robert”) and Paulette Gambrel (“Paulette”). Robert predeceased the Deceased, having died in 1992, and Paulette survived the Deceased, having died in 2013. Robert is survived by his three adult children, LaTende, Robert, and by his wife, Betty.
What is unclear from Article 7 of the Will is how Robert’s share in the Deceased’s estate should be dealt with in light of the language contained therein, and the fact that Robert predeceased the Deceased.
Issue and Analysis
Accordingly, the issue determined in the application was whether Article 7 of the Will was subject to the anti-lapse provision in the SLRA, which provides that:
31 Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,
(a) if that person had died immediately after the death of the testator;
(b) if that person had died intestate;
(c) if that person had died without debts; and
(d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.
The general rule, which is that when a residual gift lapses it passes on an intestacy, is subject to two exceptions:
(1) where the residual gift is a class gift; and
(2) where a contrary intention appears in the Will.[10]
The first step for Justice Dubé of the Ontario Superior Court was to determine the meaning and effect of Article of 7 of the Will, specifically the phrase “share and share alike”. Moreover, the Court was required to determine why the Deceased specifically gave consideration to what would happen to Dianna Spencer’s share if she predeceased him, but not to the effect if the other beneficiaries listed in Article 7 predeceased him. Given the lack of evidence produced by the Applicant to speak to the Deceased’s subjective intention at the time the Will was made, the Court was required to chiefly focus on the wording of the Will.[11]
The phrase “share and share alike,” has been interpreted in case law as words indicating a “per capita distribution” intention by the testator.[12] The Court of Appeal in Dice v. Dice Estate,[13] defined and differentiated between per capita and per stirpes as follows:
12 A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator’s death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child’s share of the gift. This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator’s death would receive one share of the gift.[14] [emphasis added]
As such, unlike a per stirpes distribution, a per capita distribution would mean that Robert’s share is divided up equally between those beneficiaries listed in Article 7 who are still alive at the time of the Deceased’s death, and not among Robert’s issue.[15] However, where the beneficiaries are all family members, as with the case at hand, the courts have determined that the testator’s intention must have been a per stirpes distribution. In Re Hall, Parker v. Knight, [1948] Ch. 437, the court stated as follows:
Through the authorities runs a reconciling principle that cases of capital distribution are cases of distribution between strangers or persons of no corresponding relationship; and that cases of stirpital distribution are cases of family distribution.[16]
Class gift?
In His Honour’s view it did not appear based on the wording of Article 7 that the residual gift of the Canadian estate amounted to a class gift. In this regard, Justice Dubé noted that: “prima facie, a class gift is a gift to a class of persons included and comprehended under some general description and bearing a certain relation to the testator or another person or united by some common ties”.[17]
The naming of the members of the class, such as several persons designated by name in Article 7 of the Deceased’s Will, made it a prima facie a gift to specific individuals rather than the class as a whole, and therefore the gift was liable to lapse.[18]
Contrary Intention in the Will?
The second issue to consider was whether a contrary intention appeared in the Will to prevent a lapse. The Applicant submitted that the Deceased expressed a contrary intention, specifically that if a beneficiary predeceased him, their share would go to their issue on a per stirpes basis.[19]
Justice Dubé agreed with this view. In his reasoning, His Honour noted that:
Although the phrase “share and share alike,” is used in Article 7, I find that, in the circumstances, this does not amount to a “contrary intention” which would prevent the gift from passing on to the beneficiaries’ issue in equal shares. The fact that the testator bequeathed his Canadian estate to specifically named family members strongly suggests a stirpital distribution, meaning that Robert’s issues are entitled to his share as per s. 47 of the SLRA. In further support of this, the Deceased specifically turned his mind in Article 7 and excluded Dianna’s Spencer’s son, the applicant Richard Spencer, from sharing a proportion of her share should she predecease him.[20]
Of further note is that the Applicant is the only grandchild of the Deceased provided for at Article 7 of the Will. This suggested that the Deceased excluded Richard from sharing in Diana’s share given he was already set to inherit his own interest in the Canadian asset, and the Deceased did not want him to receive more than the other.[21]
Concluding Comments
The Court found that the Deceased’s intention in his Will was that, if a beneficiary predeceased him, their share would go to their issue on a per stirpes basis.
Suffice to say, Spencer underscores the importance of clear testamentary intentions and precise language in preparing a Last Will and Testament, particularly regarding the distribution of assets among family members. In determining that Article 7 was a per stirpes distribution, His Honour made his interpretation consistent with the “golden rule” of construction of a Will, which presumes that the testator did not intend to die intestate.[22]
—
[1] Spencer v. Spencer, 2025 ONSC 2867 (“Spencer”).
[2] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).
[3] Spencer at paras 5 and 6.
[4] Spencer at para 7.
[5] Spencer at paras 8 and 9.
[6] Spencer at para 10.
[7] SLRA, at section 36(1). For more information on the SLRA’s conflict of laws, see <https://welpartners.com/blog/2023/11/domicile-and-dependants-support-claims-what-happens-when-the-deceased-died-living-outside-ontario/>
[8] Spencer at para 11.
[9] Spencer at para 15.
[10] Spencer at para 25. See Kapousouzian Estate v. Spiak, 2014 ONSC 2355, at para. 10.
[11] Spencer at para 26.
[12] Spencer at para 27. See Boudreault (Estate) (Re), 2001 ABQB 196, 290 A.R. 116, at para. 29
[13] Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 12
[14] Spencer at para 28.
[15] Spencer at para 29.
[16] Spencer at para 30.
[17] Spencer at para 31.
[18] Spencer at para 32. See Koleniec Estate (Re), at paras. 14–16
[19] Spencer at para 33.
[20] Spencer at 36 – s.47 SLRA meaning
[21] Spencer at para 37.
[22] Ibid.
Menu
Written by: Oliver O'Brien
Posted on: September 3, 2025
Categories: Commentary
The decision in Spencer v. Spencer (“Spencer”),[1] concerned the interpretation of a Last Will and Testament and whether the anti-lapse provision of the Succession Law Reform Act[2] (“SLRA”) applied, which prevents testamentary gifts from ‘failing’ and passing on an intestacy.
Background
Spencer concerned the estate of Floyd Kersey (the “Deceased”) of Michigan, U.S.A. who passed away in 1995. The Deceased was predeceased by his wife, Geraldine Kersey (“Geraldine”), who passed away in 1990. Before his passing, the Deceased executed a Last Will and Testament dated February 5, 1983 (the “Will”).[3]
Despite passing away three decades ago, the Deceased and Geraldine remained the registered owners of a cottage property in Shrewsbury, Ontario (the “Cottage”). Both estate trustees named in the Will were also deceased.[4]
The Applicant, Richard Spencer (the “Applicant”), is the Deceased’s grandson. By a Letter of Authority for Personal Representative, the State of Michigan Probate Court appointed the Applicant as personal representative of the Deceased’s Estate.[5]
The Applicant commenced the Application seeking the Will’s interpretation given he was unable to reseal the Letters of Authority for Personal Representative because it remained unclear who the beneficiaries of the Deceased’s estate were with respect to the Cottage in Canada.[6]
Pursuant to section 36(1) of the SLRA,[7] the Ontario Superior Court of Justice had jurisdiction over the matter given the issue concerned real property located within the province.[8]
The Will
The Applicant sought an interpretation of certain dispositive provisions in the Deceased’s Will provided for at Article 7. Article 7 of the Deceased’s Will reads as follows:
IT IS FURTHER OUR JOINT WILL that we give, devise, and bequeath all the rest, residue and remainder of any estate or property which we, or the survivor of us may die seized or possessed in Canada to our aforesaid children, and grandson, RICHARD SPENCER, DIANNA M. SPENCER, ROBERT G. KERSEY, PAULETTE GAMBREL, and LANE S. KERSEY, equally, share and share alike; provided, however, that should our daughter DIANNA M. SPENCER predecease us, then her share of said property shall be divided equally among her children, share and share alike, other than RICHARD SPENCER. [emphasis added]
The beneficiaries provided for in Article 7 are the Deceased’s children save and except for the Applicant, as the Deceased’s grandson and Dianna Spencer’s son. Of significance, of the five beneficiaries named in Article 7, the Deceased only directed his attention to what would happen if Dianna Spencer predeceased him.[9]
All of the beneficiaries named in Article 7 of the Deceased’s Will are still alive, but for Robert G. Kersey (“Robert”) and Paulette Gambrel (“Paulette”). Robert predeceased the Deceased, having died in 1992, and Paulette survived the Deceased, having died in 2013. Robert is survived by his three adult children, LaTende, Robert, and by his wife, Betty.
What is unclear from Article 7 of the Will is how Robert’s share in the Deceased’s estate should be dealt with in light of the language contained therein, and the fact that Robert predeceased the Deceased.
Issue and Analysis
Accordingly, the issue determined in the application was whether Article 7 of the Will was subject to the anti-lapse provision in the SLRA, which provides that:
31 Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,
(a) if that person had died immediately after the death of the testator;
(b) if that person had died intestate;
(c) if that person had died without debts; and
(d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.
The general rule, which is that when a residual gift lapses it passes on an intestacy, is subject to two exceptions:
(1) where the residual gift is a class gift; and
(2) where a contrary intention appears in the Will.[10]
The first step for Justice Dubé of the Ontario Superior Court was to determine the meaning and effect of Article of 7 of the Will, specifically the phrase “share and share alike”. Moreover, the Court was required to determine why the Deceased specifically gave consideration to what would happen to Dianna Spencer’s share if she predeceased him, but not to the effect if the other beneficiaries listed in Article 7 predeceased him. Given the lack of evidence produced by the Applicant to speak to the Deceased’s subjective intention at the time the Will was made, the Court was required to chiefly focus on the wording of the Will.[11]
The phrase “share and share alike,” has been interpreted in case law as words indicating a “per capita distribution” intention by the testator.[12] The Court of Appeal in Dice v. Dice Estate,[13] defined and differentiated between per capita and per stirpes as follows:
12 A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator’s death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child’s share of the gift. This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator’s death would receive one share of the gift.[14] [emphasis added]
As such, unlike a per stirpes distribution, a per capita distribution would mean that Robert’s share is divided up equally between those beneficiaries listed in Article 7 who are still alive at the time of the Deceased’s death, and not among Robert’s issue.[15] However, where the beneficiaries are all family members, as with the case at hand, the courts have determined that the testator’s intention must have been a per stirpes distribution. In Re Hall, Parker v. Knight, [1948] Ch. 437, the court stated as follows:
Through the authorities runs a reconciling principle that cases of capital distribution are cases of distribution between strangers or persons of no corresponding relationship; and that cases of stirpital distribution are cases of family distribution.[16]
Class gift?
In His Honour’s view it did not appear based on the wording of Article 7 that the residual gift of the Canadian estate amounted to a class gift. In this regard, Justice Dubé noted that: “prima facie, a class gift is a gift to a class of persons included and comprehended under some general description and bearing a certain relation to the testator or another person or united by some common ties”.[17]
The naming of the members of the class, such as several persons designated by name in Article 7 of the Deceased’s Will, made it a prima facie a gift to specific individuals rather than the class as a whole, and therefore the gift was liable to lapse.[18]
Contrary Intention in the Will?
The second issue to consider was whether a contrary intention appeared in the Will to prevent a lapse. The Applicant submitted that the Deceased expressed a contrary intention, specifically that if a beneficiary predeceased him, their share would go to their issue on a per stirpes basis.[19]
Justice Dubé agreed with this view. In his reasoning, His Honour noted that:
Although the phrase “share and share alike,” is used in Article 7, I find that, in the circumstances, this does not amount to a “contrary intention” which would prevent the gift from passing on to the beneficiaries’ issue in equal shares. The fact that the testator bequeathed his Canadian estate to specifically named family members strongly suggests a stirpital distribution, meaning that Robert’s issues are entitled to his share as per s. 47 of the SLRA. In further support of this, the Deceased specifically turned his mind in Article 7 and excluded Dianna’s Spencer’s son, the applicant Richard Spencer, from sharing a proportion of her share should she predecease him.[20]
Of further note is that the Applicant is the only grandchild of the Deceased provided for at Article 7 of the Will. This suggested that the Deceased excluded Richard from sharing in Diana’s share given he was already set to inherit his own interest in the Canadian asset, and the Deceased did not want him to receive more than the other.[21]
Concluding Comments
The Court found that the Deceased’s intention in his Will was that, if a beneficiary predeceased him, their share would go to their issue on a per stirpes basis.
Suffice to say, Spencer underscores the importance of clear testamentary intentions and precise language in preparing a Last Will and Testament, particularly regarding the distribution of assets among family members. In determining that Article 7 was a per stirpes distribution, His Honour made his interpretation consistent with the “golden rule” of construction of a Will, which presumes that the testator did not intend to die intestate.[22]
—
[1] Spencer v. Spencer, 2025 ONSC 2867 (“Spencer”).
[2] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).
[3] Spencer at paras 5 and 6.
[4] Spencer at para 7.
[5] Spencer at paras 8 and 9.
[6] Spencer at para 10.
[7] SLRA, at section 36(1). For more information on the SLRA’s conflict of laws, see <https://welpartners.com/blog/2023/11/domicile-and-dependants-support-claims-what-happens-when-the-deceased-died-living-outside-ontario/>
[8] Spencer at para 11.
[9] Spencer at para 15.
[10] Spencer at para 25. See Kapousouzian Estate v. Spiak, 2014 ONSC 2355, at para. 10.
[11] Spencer at para 26.
[12] Spencer at para 27. See Boudreault (Estate) (Re), 2001 ABQB 196, 290 A.R. 116, at para. 29
[13] Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 12
[14] Spencer at para 28.
[15] Spencer at para 29.
[16] Spencer at para 30.
[17] Spencer at para 31.
[18] Spencer at para 32. See Koleniec Estate (Re), at paras. 14–16
[19] Spencer at para 33.
[20] Spencer at 36 – s.47 SLRA meaning
[21] Spencer at para 37.
[22] Ibid.
Author
View all posts