Saunders Estate (Re)

Parties

Procedural Posture

Probate / Application for Interpretation/directions; Judgment

Legal Issues

1. 1 Disposition of devises to a beneficiary who predeceased the testator without issue
2. 2 Whether the timber/advisor clause is mandatory or precatory and to which properties it applies
3. 3 Meaning of 'said nieces and nephews' and the mechanics of income and capital distribution under clause (i)

Ratio Decidendi

The court held that (1) the devises to Kevin Forsythe lapsed and fall into residue pursuant to s.24 of the Wills Act because no contrary intention appears and anti‑lapse provisions do not apply to a grand‑nephew who died without issue; (2) the timber advisory clause is precatory and not binding on trustees or beneficiaries, though the court recognized the entitlement of the life tenant to profits from timber during the life interest; and (3) the phrases 'said nieces and nephews' and 'such niece or nephew' refer to the six specifically named individuals and income and capital distributions are to be made in accordance with the express scheme in clause (i) as construed in the reasons.

Court Disposition

Court interprets will clauses: (a) devises to Kevin Forsythe lapse to residue under s.24 of the Wills Act; (b) the timber advisory clause is precatory and not mandatory and applies only to properties that are wood lots (Young Street and Sharp as applicable) with timber profits during the life interest belonging to...

Orders

• Declaration that the one‑third devises to Kevin Forsythe of the Sharp, Young Street and Marsh properties lapsed and fall into the residuary devise under s.24 of the Wills Act
• Declaration that the timber advisory clause is precatory, not mandatory, and applies only to the Young Street and Sharp properties to the extent they qualify as wood lots; ten percent of profits may be paid to William Bernasconi if his advice is sought but the clause does not bind trustees or beneficiaries