When is an Intestacy Not an Intestacy? It Depends...
In Ontario, a lapsed residuary gift is distributed on intestacy, unless there is a contrary intention in the Will. In Mladen Estate v. McGuire the issue that arose was whether the judge could consider all of the surrounding circumstances or was limited to interpreting the language in the Will when determining whether a contrary intention existed.
In this case, the Deceased left the residue of her estate to her mother and if her mother pre-deceased her to her aunt and her two cousins. Both the mother and the aunt pre-deceased her, meaning that the two cousins received their shares of the residue but that the aunt’s share was presumed to pass on intestacy.
The intestate heirs were determined to be the two cousins named in the will and three other cousins, none of whom the Deceased knew.
Counsel for the two cousins named in the Will argued that the Deceased would have never intended any part of her estate to go to relatives she did not know and that the lapsed gift should go to the two other residual beneficiaries. Counsel for the other three cousins argued that the law was clear and that they were entitled to part of the lapsed residue.
The court held that in determining whether a contrary intention exists, the judge is entitled to sit in the “testator’s armchair” and consider the surrounding circumstances when the Will was drafted. Here, the court determined that a “contrary intention” existed based on the evidence that the Deceased considered the cousins named in her will to be her only cousins and, as a result, they received the aunt’s residuary share.
Have a great weekend!
Megan F. Connolly
