Devonport v. Devonport

At common law, when a gift is made through a will to a beneficiary who then predeceases the testator, the gift fails and “lapses” into the residue of the estate. Section 31 of the Succession Law Reform Act[1] (“SLRA”), also known as the “anti-lapse provision,”  was enacted to prevent the gift from lapsing in certain scenarios. Section 31 reads as follows:

Substitutional gifts

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.

The opening words of s. 31 allow a testator to remove the operation of the anti lapse provision simply by expressing contrary intention in their will. The Ontario Superior Court of Justice and the Ontario Court of Appeal recently had to grapple with the interpretation and operation of the anti-lapse provision in Devonport v. Devonport.[2]

Facts

The initial proceedings were brought as an application to interpret the last will and testament of Eleanor Martha Devonport (“Eleanor” or the “Deceased”). The will was dated October 15^th, 1997 (the “Will”), although the Deceased did not pass until July 17, 2022.

In the Will, the Deceased gifted a residential property to her son (the “Property”), Peter Devonport (“Peter”). Peter was married to Catherine Devonport (“Catherine” or the “Applicant”) who initially brought the application in her personal capacity and her capacity as Estate Trustee for Peter’s estate, as Peter predeceased his mother by a number of years. Catherine is also the sole beneficiary of Peter’s estate.

The Property was originally owned by Eleanor’s father-in-law. Title was then transferred to Eleanor’s husband Lorne upon the passing of Lorne’s father. Lorne passed away in July of 2005, where then the Property’s title passed to Eleanor.

The Property contained 3 separate apartment units. Peter and Catherine moved into the second-floor apartment of the Property in 1976. They paid rent to Lorne, and then to Eleanor. Catherine remained in the apartment following Peter’s death and continued to pay rent.

The Applicant argued that the Property passed to her by operation of the anti-lapse provision in s. 31 of the SLRA. Nancy Devonport (“Nancy” or the “Respondent”) is the Deceased’s only surviving child and the Estate Trustee for Eleanor’s Estate. Additionally, Nancy moved into the main floor apartment of the Property in 2019. Nancy argued that the Deceased had expressed the contrary intention in her will and therefore the anti-lapse provision does not apply.

Issues

1. The central issuing arising on the application concerned whether s. 31 of the SLRA applied to the gift of the Property to Peter, which would therefore prevent it from lapsing into the residue of Eleanor’s estate.
2. If s. 31 does apply, was Catherine unjustly enriched to Nancy’s detriment?
3. If s. 31 does apply, is Nancy required to account to Catherine for her dealings in respect of the Property from the date of Eleanor’s death?
4. If s. 31 does apply, should Nancy pay Catherine rent for Nancy’s occupation of the Property from the date of Eleanor’s death?

Ontario Superior Court of Justice

Rees J. of the Ontario Superior Court of Justice ultimately held that this was a paradigm case of the operation of the anti-lapse provision. In coming to a decision, the Court outlined a number of general principles in the interpretation of a will. Paramount to the interpretation of a will is to determine the testator’s actual or subjective intention as to how they intend to dispose of their property.[3] To determine the intention at the time the will was made, the court must interpret the entire will and not only the disputed provisions.

In considering the Will in its entirety, the Court found that had Eleanor’s husband Lorne not predeceased her in 2005, he would have inherited the whole of Eleanor’s estate absolutely. Luckily, Eleanor, at the time of preparing the Will, had contemplated the eventuality that Lorne would predecease her, addressing that eventuality in two clauses: the “Alternative Transfer of Property” clause (3(e)) and the “Alternate Residuary Estate for Issue” clause (3(f)). The former gifts two specific real properties; the latter addresses the disposition of the residue of her estate.

The Alternative Transfer of Property clause provided:

(e) If my spouse shall have predeceased me or shall die within thirty (30) clear days following my death, my trustees shall, unless my spouse has done so during his lifetime, transfer to my son, PETER JOHN DEVONPORT, all my interest in the real property municipally known as 14 Hopewell Avenue, in the City of Ottawa, Regional Municipality of Ottawa-Carleton, absolutely, and transfer to my daughter, NANCY DEVONPORT, all my interest in the real property municipally known as 1518 Apeldoorn Avenue, in the City of Ottawa, Regional Municipality of Ottawa-Carleton, absolutely.

The Alternate Residuary Estate for Issue clause provided:

(f) If my spouse shall have predeceased me or shall die within thirty (30) clear days following my death, my trustees shall, subject to the provisions of sub-paragraph 3(e) above, divide my residuary estate into two (2) equal shares and distribute one such share for the benefit of each of my children, PETER JOHN DEVONPORT and NANCY DEVONPORT, share and share alike, PROVIDED THAT if either child of mine shall have predeceased me leaving issue living at my death, such deceased child of mine shall be considered alive for the purpose of such division and distribution and the share of the child of mine who shall have predeceased me shall be distributed in equal parts per stirpes among the issue of such child of mine. PROVIDED THAT if any such deceased child shall not leave any child or children him or her surviving, her or her share shall be paid or transferred to my child who shall be living at the death of such deceased child.

The specific property that would have been gifted to Nancy in the Alternative Transfer of Property clause had been sold in April of 2018, while Eleanor was alive by Nancy in her capacity as Eleanor’s attorney for property. The proceeds of sale were used in part to assist in Eleanor’s care.

Nancy argued that the Will manifested a contrary intention, as the intention of Eleanor was to divide her estate equally between her two children. She argued that the Alternative Transfer of Property clause is best understood as a class or joint gift of all of Eleanor’s real property to her children.

The Court concluded that Eleanor’s will was clear and unambiguous in its wording. The Will, interpreted from the time of its creation, showed that it was Eleanor’s intention to bequeath Peter the Property “absolutely”. No contrary intention was found to appear whatsoever in the Will that would oust s. 31 of the SLRA and therefore by virtue of its operation, the Property would pass to Catherine, rather than lapsing into the residue of the Estate. The Court put a particular emphasis of the word “absolutely” in the Will when describing Eleanor’s intention to transfer the Property to Peter. They found that with the use of that word in the context of Eleanor’s will, it was clear that there was no expression of intention to oust the anti-lapse provision.

The Court also placed emphasis on the fact that it is a relatively easy matter of drafting to expressly provide for a contrary intent, and therefore, courts should not find a contrary intent by conjecture or stretched inference. If Eleanor had meant for her estate to have been divided equally, it could have been easily provided for in the Will, and as it is clear that these properties were meant as separate gifts to Peter and Nancy, there should be no finding of contrary intent.

The Court then went on to note that, as Catherine has been the rightful owner of the Property, Nancy should account to Catherine for her dealings in respect to the Property and should pay Catherine rent for the period of time that Nancy lived in the Property from the date of Eleanor’s death. Additionally, while no unjust enrichment cross-application was made, the Court noted that there would be no merit to one, as there is plainly a juristic reason for Catherine’s enrichment – the combined juristic effect of Eleanor’s will, Peter’s will, and s. 31 of the SLRA.

Ontario Court of Appeal

Following the holding, Nancy appealed the judgment, arguing that the ONSC Judge made several errors in coming to their decision, including the finding that the anti-lapse provision applied, given that the Will’s terms showed a contrary intention.

The Ontario Court of Appeal heard submission from Nancy and dismissed the appeal without even calling on Catherine.

In dismissing the appeal, the Court of Appeal held that Rees J.’s interpretation of s. 31 of the SLRA was correct and consistent with the jurisprudence. Additionally, the Court of Appeal noted that the application judge set out and adhered to the correct principles applicable to interpreting the terms of a will and determining the subjective intention of the testator. On review of the materials, the Court of Appeal also noted that the application judge made no error in concluding that the Will did not show a contrary intention which would oust the application of the anti-lapse provision.

Final Thoughts

This decision reflects a long line of judicial holdings that demonstrate the paramountcy of ascertaining the specific intention of a testator at the time of the drafting of a Will. Although the Court of Appeal’s decision on Nancy’s appeal was short, they in effect adopted the analysis and holdings of the longer decision rendered by Rees J. of the Ontario Superior Court of Justice. Given that, this decision may very well become the “go to” precedent that will inform future decisions in regards to all disputes arising out of s. 31 of the SLRA, which therefore makes it an important read for all Estate professionals dealing with such a topic.

—

[1] Succession Law Reform Act, RSO 1990, c S.26 at section 31

[2] Devonport v. Devonport, 2025 ONCA 753

[3] Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 36;