In the case of Jonas v Jonas,[1] the Ontario Court of Appeal considered the proper interpretation of a Will’s residue clause. More specifically, this case relates to the proper interpretation of the often used term “in equal shares per stirpes” in the context of a specific Will.
The deceased, Saul Jonas, was a senior lawyer with experience in wills and estates who died on March 26, 2018. He was survived by his common law spouse, Mary Ann West, and his four children. One of his children, Miriam Young, was the appellant in this case. Mary Ann West and two of the deceased’s children (Naomi and Deborah) were appointed as Estate Trustees. At his death, the deceased had four grandchildren.
The relevant Will clause (the “Clause”) provided:
I DIRECT my trustees to divide the rest, residue and remainder of my estate as follows: forty per cent (40%) to be divided equally among my children who shall survive me and sixty per cent (60%) to be divided equally between my grandchildren and my great grandchildren (if any) who shall survive me or be born within ten years of my decease, in equal shares per stirpes. Provided that the share to my grandchildren shall be kept and invested by my trustee and used for the support of such grandchildren and for their education and then paid to each of them upon such grandchild attaining the age of 40.
As mentioned above, there was uncertainty surrounding the interpretation of “in equal shares per stirpes” as found in this Clause. The Estate Trustees brought an application seeking the court’s opinion, advice and direction, regarding the appropriate distribution. The application judge was presented with six different possible interpretations, but only two were argued before her – one by the appellant and one by the Office of the Children’s Lawyer (“OCL”) (who represented the interests of the deceased’s grandchildren and unborn and unascertained beneficiaries of the deceased’s estate).
Before the application judge, the appellant’s position was that all of the residue (including the 60%) should be divided equally among the deceased’s children. This would mean that: (a) a child who had no children on the vesting date (being 10 years after the date of death of the deceased) would receive one-quarter of the total residue (being 10% of the 40% allocation and 15% of the 60% allocation); and (b) any grandchildren alive on the vesting date would receive an equal share of their parent’s 15% of the 60%.