Acreman Estate (Re)

Acreman Estate (Re)

The court held that the word "issue" in clause 3.C.(ii)(c) bears its technical meaning of all lineal descendants and that the posthumous child Destiny Rain Lowery, conceived before the testatrix's death and born 261 days after death, is included as "issue" under that clause; minors need not be separately represented for this application and the estate will bear the executor's costs.

Citation
2001 BCSC 678
Parties
Applicant/executor: Executor of the Estate of Florence Edith Acreman; Deceased/testatrix: Florence Edith Acreman; Beneficiary/sister of Testatrix: Gladys M. Burrows; Respondent/niece (in Person): Elinore Dye; Respondent/nephew (in Person): John Burrows; Posthumous Beneficiary/issue: Destiny Rain Lowery; Potential Intervenor for Minors: Public Guardian and Trustee
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
7 May 2001
Procedural Posture
Will Interpretation / Estate Administration / Application for Construction of Will; Reasons for Judgment
Outcome
Application granted: court declares meaning of clause and includes posthumous child as beneficiary
Legal Topics
Construction of Will, Meaning of "issue", Posthumous Child Entitlement, Representation of Minors
Source Language
English
Wills and Estates Succession Civil Procedure Construction of Will Meaning of "issue" Posthumous Child Entitlement Representation of Minors

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Parties

Executor of the Estate of Florence Edith Acreman

Applicant/executor

Florence Edith Acreman

Deceased/testatrix

Gladys M. Burrows

Beneficiary/sister of Testatrix

Elinore Dye

Respondent/niece (in Person)

John Burrows

Respondent/nephew (in Person)

Destiny Rain Lowery

Posthumous Beneficiary/issue

Public Guardian and Trustee

Potential Intervenor for Minors

Procedural Posture

Will Interpretation / Estate Administration / Application for Construction of Will; Reasons for Judgment

Legal Issues

  1. 1 Whether the word "issue" in clause 3.C.(ii)(c) means "children" or all lineal descendants
  2. 2 Whether a child born after the testatrix's death but conceived before death (en ventre sa mere) is included as "issue"
  3. 3 Whether minors need separate representation for this application

Ratio Decidendi

The court held that the word "issue" in clause 3.C.(ii)(c) bears its technical meaning of all lineal descendants and that the posthumous child Destiny Rain Lowery, conceived before the testatrix's death and born 261 days after death, is included as "issue" under that clause; minors need not be separately represented for this application and the estate will bear the executor's costs.

Court Disposition

Application granted: court declares meaning of clause and includes posthumous child as beneficiary

Orders

  • Declare that "issue" in clause 3.C.(ii)(c) means all lineal descendants of Gladys M. Burrows
  • Declare that Destiny Rain Lowery (born May 27, 2000) is included as "issue" under clause 3.C.(ii)(c)