Saturday, June 30, 2012

Meaning of "per stirpes" in context of named beneficiary

Dice v. Dice Estate, 2012 ONCA 468 deals with the meaning of "per stirpes" where a beneficiary is named and a gift is made to them "per stirpes".

In Lau v. Mak Estate (2004), 10 E.T.R. (3d) 152 (Ont. S.C.), which involved a will with a similarly worded clause, Cullity J. determined that no meaning should be given to the phrase "per stirpes". Cullity J. reached this conclusion because, construed in accordance with its ordinary meaning, a gift to named children is a gift to a class of a single generation – whereas the phrase "per stirpes" implies at least the possibility of an intergenerational gift. Accordingly, Cullity J. concluded that, when used in conjunction with a gift to named children, the phrase "per stirpes" creates a contradiction in terms.

Certainly, "per stirpes" is properly used when referring to a class as opposed to a named beneficiary. In that context the estate of a decedent is distributed "per stirpes", if each branch of the family is to receive an equal share of an estate. When the heir in the first generation of a branch predeceased the decedent, the share that would have been given to the heir would be distributed among the heir's issue in equal shares.

The Court of Appeal held, in this case, that the Lau approach of ignoring the term "per stirpes" as having no meaning was inappropriate. The Court holds:

[87]      The question thus remains: What did the testator, intend by the words "per stirpes"?

[88]      Absent any other indicators of intent, it seems to me that, at a minimum, these words reflect an intention that the gift neither passes to Eddie's estate nor to Marlene. Even if used improperly, it seems to me that, having regard to the traditional meaning of the phrase "per stirpes" when used in conjunction with the term "issue", the most logical meaning is that the use of the phrase conveys an intention, to benefit, at least, the testator's children's children.

[89]      Viewed in this way, I do not agree that a gift to named children, per stirpes, necessarily creates a contradiction in terms.  Rather, in the context of Mr. Dice's will, which provides no other indication of the testator's intention, both aspects of this disposition can be viewed as an elaboration of his intention. That is, the disposition reflects both an intention to benefit each of the testator's children, as well as intention to benefit, at least, each child's children in the event that either or both of the named children fail to survive the life tenant.

[92]      Despite my conclusion, I agree with Cullity J. that terms such as "per stirpes", if used at all, are best used in their traditional sense – otherwise, the testator runs the risk of having his or her words ignored.


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