Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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The Globe and Mail recently interviewed a man living in British Columbia who may be the son of John F. Kennedy.

The article made me reflect on the different ways solicitors deal with persons born outside of marriage when drafting a Will. Since March 1978, persons born inside of marriage and outside of marriage are entitled to share equally in an intestacy estate. In a testate administration, unless a contrary intention is included in the Will, any words identifying a class of persons such as “issue” and “children” includes persons born outside of marriage.

However, a testator may want to exclude persons born outside of marriage from being considered as part of a gift class in order to remove the obligation on an executor to search for members of the gift class who were born outside of marriage.

Given the prevalence of common law relationships, to include a boilerplate clause excluding persons born outside of marriage from inclusion in the gift class may result in the unintentional disinheritance of grandchildren or great-grandchildren.  Any exclusion clause has to be considered carefully.

The upcoming LSUC CLE program, The Annotated Will, being held on February 21, 2008, discusses how to deal with difficult drafting issues. The two hour program is being chaired by Laura Kerr, Jennifer A. Pfuetzner, and Corina S. Weigl and promises to offer valuable advice on avoiding common drafting errors.

Have a nice day,

Diane Vieira

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Yesterday I reviewed the decision of Holmes Estate (Re) [2007] B.C.J. No. 45. You will recall that a gift in the testator’s Will to “all my nieces and nephews” was interpreted in the circumstances to mean a bequest to the children of the testator’s siblings including the 18 nieces and nephews of the testator’s late wife.

One such niece, Patricia Meadows, had been married to Alfie Meadows. Alfie was seeking entitlement to a share in the residue of the estate belonging to Patricia, who had died before the testator. He was doing so on the basis of the language contained in the Will that if any of the testator’s nieces or nephews predeceased him, that person’s share was to be paid to their surviving spouse.

The problem for Alfie was that he had been convicted of Patricia’s murder! The Court quite justly denied Alfie entitlement to Patricia’s share in the estate by applying the general rule of public policy that a person is precluded from benefiting from a crime.

The irony in this case is that while Alfie’s crime didn’t pay for him, it did benefit the surviving nieces and nephews, as the gift was a class gift (when a member of the class is disqualified their share is divided amongst the remaining members).

While this case made for an interesting read, I can only hope that the decision will help deter similar claims from arising again.

Have a good day,

Natalia Angelini