Writing wills is an art, and you've carefully devised your will. But subsequently, one of the intended beneficiaries dies before you do. So what happens to that beneficiary's share? If you're not careful, it might lapse, and pass on a partial intestacy.

Dying Intestate: When A Beneficiary Of The Will Dies Before The Testator

Richard A. Cooper

In Ontario, the Succession Law Reform Act is the governing statute that deals with inheritance laws and the disposition of a deceased's property upon an intestacy. Pursuant to section 47 of the Act, where a person dies intestate - put simply, without a valid legal will - and where the deceased leaves surviving descendants, the property will be distributed equally among the surviving descendants who are "of the nearest degree" (in most cases, the children of the deceased), subject to the rights of the spouse, if any.

Should any of the children of the intestate die before the intestate, the Act sets out that the share of the deceased child will be distributed, in equal portion, and to "the nearest degree", to that child's descendants, if any.

Where the intestate dies, leaving no spouse or children, the property is to be left, in equal portions, to each surviving parent. If only one parent survives the deceased intestate, the property is distributed to that parent exclusively.

Where no spouses, children, or parents survive the deceased intestate, the property is to be distributed to all surviving brothers and sisters of the deceased in equal portions, or to their children, for those siblings who have predeceased the intestate; where there are also no surviving siblings at all, the property is distributed among the surviving nieces and nephews; where no surviving nieces and nephews, the property goes to the next of kin of "equal degree of consanguinity" - or, put simply, the next closest blood relations to the deceased intestate. Finally, where no next of kin are identified or available, the property will pass to the State on an intestacy.

Generally, the above statutory provisions will not be triggered, and a deceased will not be deemed as dying intestate, where the deceased has left a valid legal will. Nonetheless, a testator still needs to take care to ensure that certain foreseeable contingencies are covered, that the intended gifts are not deemed to lapse and thereby pass on a partial intestacy.

One such contingency may arise when a designated beneficiary dies before the testator. According to section 23 of the Act, unless a "contrary intention" is stated in the will, the property bequest of the predeceasing beneficiary will form part of the residue of the estate, and will then be distributed accordingly among those entitled to receive the residual interests of the estate in their respective shares.

If the predeceasing beneficiary was one who held an interest in the residue of the estate, however, their share will not pass into the residue of the estate. Instead, unless a contrary intention has been expressed in a legal will by the testator, the residual share that was gifted to the predeceased beneficiary will lapse and pass as if the bequest was an intestacy.

In the Ontario Superior Court of Justice decision of Ksianzyna Estate v. Pastuszok, that is exactly what happened. In that decision, the testator - who had no spouse and children of his own - had left equal shares of the residue of his estate to the children of the woman he lived with (she was not deemed a spouse under the definition of the Act). However, when one of those children died before the testator, and when it came time to distribute the property of the testator upon his own death, the Court determined that the share of the predeceased beneficiary's gift could not pass to the residue of the estate, to be divided equally among the surviving individuals (the children of the testator's girlfriend) entitled to the residue.

Instead, pursuant to the provisions of the Act, the Court determined that the predeceased beneficiary's share of the residue had lapsed and would pass, as on an intestacy, to the testator's nearest surviving relatives - in that case, the testator's surviving siblings and their children.

Though the issue did not arise in that decision, it is likely that the Court would have reached a different determination had the testator taken care to cover this contingency, and had expressed a contrary intention - that he wished the residual shares of any predeceasing beneficiaries to pass to the residue of the estate, to be divided equally among those entitled to it.

That is why, in writing a will, it is crucial to keep abreast of all the relevant contingencies and inheritance laws, so as to ensure that a testator has left a valid, clear, and legal will that may fulfill their expectations upon their death - and, above all, that may avoid any hint of an intestacy in their estate.

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This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your legal representative will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your case.