1. Introduction
Pierce v Oswald[1] is a recent case about a will that contained a direction to distribute the residue inter alia to persons per stirpes. But the meaning of that direction was unclear and required interpretation.
In Lau v Mak Estate[2] Justice Cullity had to interpret a will that left a share of the residue to one daughter, C, for life, with remainder equally between a son and another daughter, J and S, ‘as his or her own property absolutely, in equal share per stirpes’. All three children survived the testator, but S predeceased the life tenant, C, survived by two adult children. Justice Cullity held that this was an incorrect use of the phrase per stirpes, and that it lacked any meaning. The phrase only makes sense if more than one family or stirps is represented in the description of the beneficiaries. As Justice Cullity noted, a gift to the children of someone, ‘in equal shares per stirpes’, is a contradiction in terms if the word ‘children’ is to be given its natural meaning. His Honour was very critical of the misuse of the term and took the view that if the term is misused in this way the court should disregard it. Thus, in Lau he held that the remainder vested in J and S on the death of the testator and therefore the phrase per stirpes should be disregarded.
However, the Ontario Court of Appeal took a different approach in Dice v Dice Estate.[3] The testator gave a life interest to his wife and directed that his trustees should divide the net residue equally between his son and daughter, E and M, per stirpes. E predeceased his mother, survived by three children. The judge of first instance found that the testator’s intention was to treat his children and therefore their families equally. He used the phrase per stirpes because he must have been concerned that one of the children might predecease his wife. Therefore, he held that E’s children were entitled to his share of the estate. The Court of Appeal agreed. and the court followed that interpretation in Jonas v Jonas.[4]
The court in Pierce followed this second approach.
2. Facts
The Testator, Frieda Holtzgethan, died in Toronto in 2016. She had been a secondary school teacher and had been retired for 25 years. She had made her Will in 1997. Her husband had died before then. Frieda appointed her only child, Magrid, her executor and sole residuary beneficiary. Magrid predeceased her mother and so did the alternative executor.
The Will went on to provide in clause 3(d) that if Magrid should predecease her mother, Frieda directed her trustee to divide the residue of her estate ‘into equal shares per stirpes’ and to give or transfer one such share to each of her five named sisters, Paula, Justine, Angela, Maria, and Hilda, ‘for their own respective uses absolutely, and in the event that all of the aforesaid persons shall have predeceased me, I direct my Trustee to divide the residue of my estate among my surviving issue’. All five of the sisters lived in Austria. The four older ones predeceased Frieda. The spouses of the five sisters also predeceased Frieda. However, the sisters were survived by their children.
- Paula was survived by Adelheid,
- Justine was survived by Franz and Ewald,
- Angela was survived by Eberhard,
- Maria was survived by Eduard and Edeltraut,
- Hilda survived Frieda but has since died, survived by her four children.
The Applicant, Mary Pierce and her mother Carol Pierce, were family friends of Frieda and Magrid, Carol having worked with Frieda during their teaching careers, and Carol having acted as Magrid’s executor. Mary made an application to be appointed Frieda’s Estate Trustee with a Will in 2020, having complied with all the requirements of the Rules of Civil Procedure,[5] including service upon the family members, all of whom consented to the appointment.
Mary then brought this application for the opinion, advice and direction of the court about the interpretation of Frieda’s Will. She suggested that there are three possible interpretations of clause 3(d):
- each of the five sisters takes an equal one-fifth (20%) share, and since all are now deceased, their 20% shares pass to their child or children;
- the residue passes to the sole surviving sibling, Hilda, and the share of the predeceased siblings lapses, but is saved by section 31 of the Succession Law Reform Act,[6] and passes to their children.
- The entire residue passes to Hilda as the sole surviving sibling.
3. Analysis and Judgment
Justice Sanfilippo began his analysis be noting that the court must determine the testator’s actual or subjective intention about the disposition of her property, and for that purpose the court must place itself in the testator’s armchair.[7] Significantly his Honour stated, ‘This analysis is required when, like here, the direction sought by the Estate Trustee is unopposed. The judge is obligated to be satisfied that the declaration sought sets out the testamentary intentions of the testator’.[8]
His Honour concluded that Frieda’s actual or subjective intentions about the disposition of her property were clear from a plain reading of the Will and that evidence of surrounding circumstances at the time the Will was made were also found in the Will.
His Honour determined that Frieda intended to benefit each of her five siblings equally, including the stirps or family branches of any predeceased sisters. He reached this conclusion by giving effect to the phrase per stirpes and the absence of a contrary intention in the Will, and by a consideration of the other provisions of the Will
As already mentioned, Justice Sanfilippo followed the view expounded by the Court of Appeal in Dice that the term per stirpes implies that if a beneficiary predeceases the testator, her share should pass to her descendants.
The problem that arose in this case was that clause 3(d) is ambiguous in that it instructed the Trustee to divide the residue to each sister ‘in equal shares per stirpes’ but then went on to give the sisters an equal share ‘for their own respective uses absolutely’. His Honour noted that this latter provision could be interpreted as directing a per capita distribution to the sisters only. However, by relying on Dice, he concluded that it is necessary to consider the whole will and all its provisions, and that therefore it would be wrong to disregard the term per stirpes since it suggests that the testator did not intend a per capita distribution but that the share of any sister who predeceased the testator should pass to her descendants. His Honour held therefore that the per stirpes term overrides the statement ‘for their own respective uses absolutely’. His Honour found further that the minor beneficiary clauses in the Will also supported this conclusion.
Justice Sanfilippo then considered the effect of the anti-lapse provision in section 31 of the SLRA. It directs that a bequest made to a sibling of the testator who dies before her, takes effect as if it had been made directly to the descendants of the predeceased sibling. Thus, his Honour held that section 31 would have the same effect as the conclusion he had reached on the interpretation of the Will.
Therefore, Justice Sanfilippo ordered that the share of each predeceased sister, as well as the share of Hilda, who died after the testator should be divided among their children.
Not surprisingly, his Honour ordered that the Applicant’s costs, which he determined to be fair and reasonable, be paid from the estate assets, since the application was necessary because of the ambiguity in the Will.
—
[1] 2025 ONSC 5344.
[2] (2004), 10 ETR 3d 152 (Ont SCJ).
[3] 2012 ONCA 468.
[4] 2022 ONCA 845.
[5] RRO 1990, Reg 194, Rules 9.01(2)(b), 17.02(c)(iii), 17.05(1) 75.06(1), (2)
[6] RSO 1990, c S.26 (‘SLRA’).
[7] Citing, inter alia, Ross v Canada Trust Company, 2021 ONCA 161, at para 36; Trezzi v Trezzi, 2019 ONCA 978, para 13.
[8] Citing Hejno v Hejno, 2025 ONCA 249, paras 2 and 9.
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Written by: Albert Oosterhoff
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
1. Introduction
Pierce v Oswald[1] is a recent case about a will that contained a direction to distribute the residue inter alia to persons per stirpes. But the meaning of that direction was unclear and required interpretation.
In Lau v Mak Estate[2] Justice Cullity had to interpret a will that left a share of the residue to one daughter, C, for life, with remainder equally between a son and another daughter, J and S, ‘as his or her own property absolutely, in equal share per stirpes’. All three children survived the testator, but S predeceased the life tenant, C, survived by two adult children. Justice Cullity held that this was an incorrect use of the phrase per stirpes, and that it lacked any meaning. The phrase only makes sense if more than one family or stirps is represented in the description of the beneficiaries. As Justice Cullity noted, a gift to the children of someone, ‘in equal shares per stirpes’, is a contradiction in terms if the word ‘children’ is to be given its natural meaning. His Honour was very critical of the misuse of the term and took the view that if the term is misused in this way the court should disregard it. Thus, in Lau he held that the remainder vested in J and S on the death of the testator and therefore the phrase per stirpes should be disregarded.
However, the Ontario Court of Appeal took a different approach in Dice v Dice Estate.[3] The testator gave a life interest to his wife and directed that his trustees should divide the net residue equally between his son and daughter, E and M, per stirpes. E predeceased his mother, survived by three children. The judge of first instance found that the testator’s intention was to treat his children and therefore their families equally. He used the phrase per stirpes because he must have been concerned that one of the children might predecease his wife. Therefore, he held that E’s children were entitled to his share of the estate. The Court of Appeal agreed. and the court followed that interpretation in Jonas v Jonas.[4]
The court in Pierce followed this second approach.
2. Facts
The Testator, Frieda Holtzgethan, died in Toronto in 2016. She had been a secondary school teacher and had been retired for 25 years. She had made her Will in 1997. Her husband had died before then. Frieda appointed her only child, Magrid, her executor and sole residuary beneficiary. Magrid predeceased her mother and so did the alternative executor.
The Will went on to provide in clause 3(d) that if Magrid should predecease her mother, Frieda directed her trustee to divide the residue of her estate ‘into equal shares per stirpes’ and to give or transfer one such share to each of her five named sisters, Paula, Justine, Angela, Maria, and Hilda, ‘for their own respective uses absolutely, and in the event that all of the aforesaid persons shall have predeceased me, I direct my Trustee to divide the residue of my estate among my surviving issue’. All five of the sisters lived in Austria. The four older ones predeceased Frieda. The spouses of the five sisters also predeceased Frieda. However, the sisters were survived by their children.
The Applicant, Mary Pierce and her mother Carol Pierce, were family friends of Frieda and Magrid, Carol having worked with Frieda during their teaching careers, and Carol having acted as Magrid’s executor. Mary made an application to be appointed Frieda’s Estate Trustee with a Will in 2020, having complied with all the requirements of the Rules of Civil Procedure,[5] including service upon the family members, all of whom consented to the appointment.
Mary then brought this application for the opinion, advice and direction of the court about the interpretation of Frieda’s Will. She suggested that there are three possible interpretations of clause 3(d):
3. Analysis and Judgment
Justice Sanfilippo began his analysis be noting that the court must determine the testator’s actual or subjective intention about the disposition of her property, and for that purpose the court must place itself in the testator’s armchair.[7] Significantly his Honour stated, ‘This analysis is required when, like here, the direction sought by the Estate Trustee is unopposed. The judge is obligated to be satisfied that the declaration sought sets out the testamentary intentions of the testator’.[8]
His Honour concluded that Frieda’s actual or subjective intentions about the disposition of her property were clear from a plain reading of the Will and that evidence of surrounding circumstances at the time the Will was made were also found in the Will.
His Honour determined that Frieda intended to benefit each of her five siblings equally, including the stirps or family branches of any predeceased sisters. He reached this conclusion by giving effect to the phrase per stirpes and the absence of a contrary intention in the Will, and by a consideration of the other provisions of the Will
As already mentioned, Justice Sanfilippo followed the view expounded by the Court of Appeal in Dice that the term per stirpes implies that if a beneficiary predeceases the testator, her share should pass to her descendants.
The problem that arose in this case was that clause 3(d) is ambiguous in that it instructed the Trustee to divide the residue to each sister ‘in equal shares per stirpes’ but then went on to give the sisters an equal share ‘for their own respective uses absolutely’. His Honour noted that this latter provision could be interpreted as directing a per capita distribution to the sisters only. However, by relying on Dice, he concluded that it is necessary to consider the whole will and all its provisions, and that therefore it would be wrong to disregard the term per stirpes since it suggests that the testator did not intend a per capita distribution but that the share of any sister who predeceased the testator should pass to her descendants. His Honour held therefore that the per stirpes term overrides the statement ‘for their own respective uses absolutely’. His Honour found further that the minor beneficiary clauses in the Will also supported this conclusion.
Justice Sanfilippo then considered the effect of the anti-lapse provision in section 31 of the SLRA. It directs that a bequest made to a sibling of the testator who dies before her, takes effect as if it had been made directly to the descendants of the predeceased sibling. Thus, his Honour held that section 31 would have the same effect as the conclusion he had reached on the interpretation of the Will.
Therefore, Justice Sanfilippo ordered that the share of each predeceased sister, as well as the share of Hilda, who died after the testator should be divided among their children.
Not surprisingly, his Honour ordered that the Applicant’s costs, which he determined to be fair and reasonable, be paid from the estate assets, since the application was necessary because of the ambiguity in the Will.
—
[1] 2025 ONSC 5344.
[2] (2004), 10 ETR 3d 152 (Ont SCJ).
[3] 2012 ONCA 468.
[4] 2022 ONCA 845.
[5] RRO 1990, Reg 194, Rules 9.01(2)(b), 17.02(c)(iii), 17.05(1) 75.06(1), (2)
[6] RSO 1990, c S.26 (‘SLRA’).
[7] Citing, inter alia, Ross v Canada Trust Company, 2021 ONCA 161, at para 36; Trezzi v Trezzi, 2019 ONCA 978, para 13.
[8] Citing Hejno v Hejno, 2025 ONCA 249, paras 2 and 9.
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