On Uncertainty and the Law
While we hope for certainty in the law, the reality is often quite different.
Clients are often told that going to court is a crap shoot, and outcomes are anything but certain.
To illustrate this point, we might refer to a Superior Court of Justice decision in Mladen Estate v. McGuire (2007 CanLII 10904).
There, the deceased left a will which gave the residue of her estate to an aunt, A (50%), and two cousins, B and C (25% each). A predeceased the deceased. The deceased's intestate beneficiaries were five cousins: B and C and three others.
The question to be determined was whether A's share was to be distributed to the two residuary beneficiaries, B and C, or the five next of kin.
The Court noted that the law in Ontario is that unless there is a contrary intention in the will, a lapsed residuary gift passes on an intestacy to the next of kin.
It appears clear that there was no contrary intention in the will. The Court stated that "In short, there is noting in the language of the Will itself that would allow me to conclude that if [the testator] was predeceased by [A], that she would have intended that [A's] portion should go only to [B] and [C]."
Thus, it would seem to be clear that the failed gift to A would pass on an intestacy.
However, the Court held that it could consider the "surrounding circumstances" in order to determine whether there was a "contrary intention in the will". The Court found that the uncontradicted affidavit evidence was that the deceased considered B and C to be her only real cousins, and that the other cousins were virtual strangers to her. As a result, the Court concluded that based on this extrinsic evidence, the lapsed residue passed to B and C, and not on an intestacy.
The result appears to be contrary to what is a clear statement of the law. It illustrates that in litigation, very little can be taken as certain.
Paul Trudelle
