Beck Estate (Re)

Beck Estate (Re)

The court concluded the words "my brother and three sisters" refer to the specifically named individuals alive when the will was made (individual-minded gift). The will contains no clear contrary intention to prevent lapsing of John Milbury's gift; statutory anti-lapse provisions do not save a gift to a sibling in Nova Scotia. Therefore the gift to John Milbury lapsed when he (and his wife) predeceased the testator and his share must be distributed as if the testator had died intestate with respect to that share. Executors are entitled to indemnity for the cost of obtaining the declaration and the estate must pay the expenses.

Citation
2015 NSSC 239
Parties
Deceased/testator: Vera May Beck; Applicant (proctor Seeking Declaration): Estate of Vera May Beck (Proctor); Interested Party / Niece: Rosalie Beck Osmond; Executors and Trustees: Burpee Meisner and Olin Spidle
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
18 August 2015
Procedural Posture
Probate / Will Interpretation / Declaration Application / Determination of Lapse and Distribution
Outcome
Declaration granted: subclause 5(d)(10) refers to the named brother and three sisters alive when the will was made; gift to John Milbury lapsed and his share is to be distributed as if the testator died intestate; costs to be paid by the estate and executors indemnified.
Legal Topics
Will Interpretation, Lapse of Gift, Anti Lapse, Class Gift Vs. Individual Gift, Intestacy, Costs and Indemnity
Source Language
English
Wills and Estates Probate Succession Law Will Interpretation Lapse of Gift Anti Lapse Class Gift Vs. Individual Gift Intestacy +1 more

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Parties

Vera May Beck

Deceased/testator

Estate of Vera May Beck (Proctor)

Applicant (proctor Seeking Declaration)

Rosalie Beck Osmond

Interested Party / Niece

Burpee Meisner and Olin Spidle

Executors and Trustees

Procedural Posture

Probate / Will Interpretation / Declaration Application / Determination of Lapse and Distribution

Legal Issues

  1. 1 Whether the phrase "my brother and three sisters" creates a class gift including all siblings or refers to the four named individuals alive when the will was made
  2. 2 Whether the gift to John Eldridge V. Milbury lapsed when he (and his wife) predeceased the testator and, if so, where his share should pass
  3. 3 Whether the will manifests a contrary intention to the common law rule that a gift lapses if the beneficiary predeceases the testator

Ratio Decidendi

The court concluded the words "my brother and three sisters" refer to the specifically named individuals alive when the will was made (individual-minded gift). The will contains no clear contrary intention to prevent lapsing of John Milbury's gift; statutory anti-lapse provisions do not save a gift to a sibling in Nova Scotia. Therefore the gift to John Milbury lapsed when he (and his wife) predeceased the testator and his share must be distributed as if the testator had died intestate with respect to that share. Executors are entitled to indemnity for the cost of obtaining the declaration and the estate must pay the expenses.

Court Disposition

Declaration granted: subclause 5(d)(10) refers to the named brother and three sisters alive when the will was made; gift to John Milbury lapsed and his share is to be distributed as if the testator died intestate; costs to be paid by the estate and executors indemnified.

Orders

  • Declaration that subclause 5(d)(10) refers to the named individuals alive when the will was made
  • Declaration that the gift to John Eldridge V. Milbury lapsed and that the subject of the gift is to be distributed as if the testator had died intestate