Royal Trust Corporation of Canada v. Mann

Royal Trust Corporation of Canada v. Mann

Reading the will and both codicils as a whole, the testator used "issue" to mean lineal descendants when disposing of the residue; distribution of residue is to be made per stirpes; the remainder vested in interest at the testator's death (presumption of early vesting) but is subject to partial divesting if the life tenant has additional children and to complete divesting if the life tenant dies leaving no issue.

Citation
2001 NSSC 16
Parties
Applicant (executor): Royal Trust Corporation of Canada; Applicant (executor): Karen V. Mann; Respondent (beneficiary): Geoffrey P. Mann; Respondent (beneficiary): Peter M. Mann; Respondent (beneficiary): Gillian R. Mann; Respondent (unborn Persons): Unborn Persons who may have an interest in the Estate of Jacques Price
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
30 January 2001
Procedural Posture
Probate (will Interpretation) / Chambers Decision (declaration)
Outcome
Declaration that "issue" in clause 1 of the second codicil means lineal descendants; distribution of residue per stirpes; remainder vested at testator's death subject to partial/complete divesting; appointment of guardian ad litem for unborn persons.
Legal Topics
Construction of Wills, Meaning of "issue", Vesting and Divesting of Remainders, Per Stirpes Distribution, Appointment of Guardian Ad Litem
Source Language
English
Wills and Estates Probate Trusts Construction of Wills Meaning of "issue" Vesting and Divesting of Remainders Per Stirpes Distribution Appointment of Guardian Ad Litem

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Parties

Royal Trust Corporation of Canada

Applicant (executor)

Karen V. Mann

Applicant (executor)

Geoffrey P. Mann

Respondent (beneficiary)

Peter M. Mann

Respondent (beneficiary)

Gillian R. Mann

Respondent (beneficiary)

Unborn Persons who may have an interest in the Estate of Jacques Price

Respondent (unborn Persons)

Procedural Posture

Probate (will Interpretation) / Chambers Decision (declaration)

Legal Issues

  1. 1 Does "issue" in the testamentary documents mean "children" or "lineal descendants"?
  2. 2 Whether distribution of residue is per stirpes or per capita
  3. 3 When the remainder vests and effect of subsequent births or deaths (early vesting and partial/complete divesting)

Ratio Decidendi

Reading the will and both codicils as a whole, the testator used "issue" to mean lineal descendants when disposing of the residue; distribution of residue is to be made per stirpes; the remainder vested in interest at the testator's death (presumption of early vesting) but is subject to partial divesting if the life tenant has additional children and to complete divesting if the life tenant dies leaving no issue.

Court Disposition

Declaration that "issue" in clause 1 of the second codicil means lineal descendants; distribution of residue per stirpes; remainder vested at testator's death subject to partial/complete divesting; appointment of guardian ad litem for unborn persons.

Orders

  • Peter M. S. Bryson is appointed guardian ad litem for any unborn persons who may have an interest in the estate of Jacques Price.
  • Declaration: the word "issue" in clause 1 of the second codicil means lineal descendants.