Whaley Estate Litigation

Whaley Litigation Newsletter Vol. 2 No. 5 August 2012




We continue to invite feedback, comments, enquiries and even contributions you wish to share to:   


Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
  • Section 3 Counsel under the Substitute Decisions Act
Please enjoy,


Kimberly A. Whaley
Whaley Estate Litigation

What Does "per stirpes" Really Mean?


Dice v. Dice Estate [1] 




Our Ontario Court of Appeal affirms the decision of the Ontario Superior Court [2], Judgment of the Honourable Justice Kames R. H. Turnbull on the meaning given to the phrase "per stirpes" as it appears in the Will of the late Joseph Wesley Dice.


The decision addressed primarily what, if any, meaning should be given to the phrase "per stirpes" in the residue clause of the Will.


The Application Judge, Turnbull J., held that the residue of Mr. Dice's Estate did not vest in the residuary beneficiaries until the life tenant's death, which did not occur until 2010.  Moreover, Turnbull J., acknowledged that in Lau v. Mak Estate (2004), 10 E.T.R.  (3d) 152 (Ont. S.C.), a case that involved a Will, with a similarly worded residue clause, that Cullity J. determined no meaning should be attributed to the phrase "per stirpes". Cullity J. reached this decision because His Honour construed in accordance with its ordinary meaning, a gift to named children is a gift to a class of the single generation - whereas the phrase "per stirpes" implies at least the possibility of an intergenerational gift. Accordingly, Cullity J. concluded that, when used in conjunction with a gift to named children, the phrase "per stirpes" creates a contradiction in terms.


The Residue Clause in Question:


The residue clause read as follows:


"Upon the death of my said wife, Eileen Mary Dice, I direct my said Trustees to arrange for the burial of my said wife and to deduct the amount thereof from the residue of my estate. I then direct that my said Executors and Trustees divide the rest, residue and remainder of my estate, if any, after the death of my said wife, Eileen Mary Dice, equally, between my son, James Edgar Dice, and my daughter, Marlene Marguerite Buck, per stirpes. [Underlining in the original.]"


The Decision Giving Rise to The Appeal


Turnbull J., found that various aspects of the Will, including the words "per stirpes" indicated an intention to benefit the families of each of Mr. Dice's children equally, if either of his children predeceased his wife.


Turnbull J., acknowledged the presumption of early vesting, and found that the language of the residue clause rebutted this presumption.  Specifically, the clause in the Will indicated Mr. Dice's intention that the gift of the residue should not vest until his wife's death and until her burial had been fully affected and paid for.


The Issues on Appeal:


The issues on appeal were as follows:


[34] Marlene and Suzanne raised the following issues on appeal:


(i) the application judge erred in his findings concerning Mr. Dice's testamentary intentions;


(ii) the application judge erred in relying on Mrs. Dice's will to construe Mr. Dice's intentions; and


(iii) the application judge erred in failing to find that the phrase "per stirpes" in the residue clause should be ignored or given a restricted meaning.


[35] Suzanne raised the following additional issue:


(i) the application judge erred in failing to find that Eddie's share of the residue vested in Eddie indefeasibly on the testator's death.


Principles to be Applied in Interpreting Wills:


The Court of Appeal, and indeed the parties, agreed that the proper approach to the interpretation of the Will would be to first determine the intention of the testator when he made his Will.


As a reminder, the golden rule in interpreting Wills is to give effect to the testator's intention as ascertained from the language that was used. [3]


This approach is an attempt to ascertain the testator's intention, having regard to the Will as a whole.


Where the testator's intention cannot be ascertained from the plain meaning of the language that was used, the court may consider surrounding circumstances - the so-called "arm chair rule." [4] This rule enables the court to sit in the place of the testator to assume the knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence. The purpose of this exercise is to put the court in, as close as possible to, the same position as the testator when the Will was made.


The Meaning of "per stirpes":


The expression "per stirpes" means that the descendants of the identified beneficiary take that beneficiary's share. According to Cullity J., the most familiar use of the term "per stirpes" is found in gifts to a class that could compromise more than one generation - such as gifts to the testator's issue. In other words, the words describe a method of distribution in a Will under which each stock or branch of the family receives one share of the gift. [5]


In the Law of Wills, the expression "per stirpes" means "by the roots or stocks" and expressly refers to dividing the share of an estate of a deceased ancestor among the successors of the deceased ancestor. [6]


To distinguish "per stirpes" from "per capita" distributions, a "per capita" distribution is one where each beneficiary receives one share of the gift. In other words, all beneficiaries will share equally. [7]


Findings of the Court of Appeal


In the end, the Court of Appeal upheld the application Judge's decision and made the following important observations:


(i) The governing principle is that the court must try to ascertain the intention of the testator;


(ii) At most, what is evident in this case, is a general intention to benefit Mr. Dice's children more or less equally;


(iii) That the testator intended the words "per stirpes" should have some meaning which the Court of Appeal determined at a minimum reflected an intention that the gift neither passed to his child Eddie's estate, nor his child Marlene's estate. Even if used improperly, the court opined having regard to the traditional meaning of the phrase "per stirpes" when used in conjunction with the term "issue", the most logical meaning is that the use of the phrase conveys an intention to benefit, at least, the testator's children;


(iv) For this reason, the Court of Appeal did  not agree that a gift to named children, "per stirpes" necessarily created a contradiction in terms, rather, the court opined in the context of Mr. Dice's Will, which was acknowledged, provided no other indication of the testator's intention, that the disposition reflects both an intention to benefit each of the testator's children, as well as an intention to benefit, at least each child's children in the event that either or both of the named children failed to survive the life tenant;


(v) The Court of Appeal took care to express its concurrence with Cullity J. in the Lau Estate stating that terms such as "per stirpes" if used at all, are best used in their traditional sense - otherwise, the testator runs a risk of having his/her words ignored.  The Court of Appeal also stated that in Mr. Dice's Will, there is not a contrary intention evident which would suggest the need to disregard the  phrase "per stirpes";


(vi) The Court of Appeal also opined, that whether the residue vested contingently in Mr. Dice's children upon Mr. Dice's death, or as the application judge held, vesting was postponed until the life tenant's death, the result is the same;


therefore the appeal was dismissed with costs ordered to be paid, payable by all parties out of the estate.

[1] Dice v. Dice Estate, 2012 ONCA 468 (CanLII)

[2] Dice v. Dice Estate 2011 ONSC 3641  337 D.L.R. (4th) 499 (CanLII)

[3] National Trust Co. Ltd. v Fleury [1965] S.C.R. 817 at p. 829; Brown Estate (Re),  [1934] S.C.R. 324, at p. 330;  Singer v. Singer [1932] S.C.R. 44, at p. 49

[4] Re Burke, [1960] O.R. 26 (C.A.) at p. 30; Re Shamas, [1967] 2 O.R. 275 (C.A.) at p. 279; citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.) at pp. 42-21.

[5] Lau v Mak Estate (2004), 10 E.T.R.  (3d) 152 (Ont. S.C.)

[6] British Columbia (Official Administrator) v. Joseph (1999) 30 E.T.R. (2d) 1 (B.C.S.C.)at p. 4

[7] Re Clarke Estate [1994] 1 W.W.R. 497 (B.C.S.C.) 

The Case of the Missing Will


In the July 2012, Volume 20, Issue 6, STEP Journal, appeared an article entitled: "The Case of the Missing Will." [1] This article is about the presentation of the Honourable Justice Tom Gray's presentation of his paper entitled: "The Case of the Missing Will." Justice Gray is a Judge at the Supreme Court of South Australia. In essence, the article seems to address the issue that a number of applications are coming before the court for a grant of probate where the original Will cannot be found.


Justice Gray addressed the considerations to be applied before probate can be granted where an original Will cannot be located.  The considerations referenced by Justice Gray were considered in the Estate of Hall (deceased) [2011] SASC 117, and the considerations were identified as follows:


(1) That the original Will existed;


(2) That the original Will was executed, or if the original Will does not meet the formalities required by legislation, that it satisfies the legislative requirement allowing it, as an informal Will, to be admitted to probate;


(3) That there is evidence of the terms of the original Will;


(4) That the copy Will is an accurate and complete copy of the original Will;


(5) That thorough searches have been conducted to find the original Will, including publishing advertisements regarding the missing original Will;


(6) That the original Will revoked all pre-existing Wills;


(7) The circumstances surrounding the absence of the original Will;


(8) That all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and


(9) That the presumption of revocation does not arise or has been rebutted.


Gray J. did note that the propounding party need not exhaustively prove all of these considerations. Moreover, that the nature of the list of considerations demonstrates that each case will turn on its own facts.


This issue also is prevalent in Ontario and it is unknown just how many applications come before our court to address this very problem.  Gray J., recommended in his paper that one means of avoiding such problems associated with misplaced Wills would be to have an electronic Wills register.

[1] STEP Journal, July 2012, Volume 20/Issue 6 - pages 66-67

The English Court of Appeal Decision in Barrett v. Ben, [2012] EWCA CIV 52


Ensuring the Will is Valid Where the Testator Directs Signature


Ontario Legislation:


A validly executed Will in Ontario is one that is made in writing in accordance with Section 3 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 ( the "SLRA").


A Will in writing is not valid unless:


4.(1) Subject to sections 5 and 6, a will is not valid unless,


(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;


(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and


(c) two or more of the attesting witnesses subscribe the will in the presence of the testator


For a holograph Will to be valid, section 6 of the SLRA provides:


A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.


As to the position of the signature, section 7 of the SLRA provides:


     7(1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.




     (2)A will is not rendered invalid by the circumstance that,


(a) the signature does not follow or is not immediately after the end of the will;


(b) a blank space intervenes between the concluding words of the will and the signature;


(c) the signature,


(i) is placed among the words of a testimonium clause or of a clause of attestation,


(ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or


(iii) follows or is after, under or beside the name of a subscribing witness;


(d) the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or


(e) there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.




     (3)The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does not give effect to,


(a) a disposition or direction that is underneath the signature or that follows the signature; or


(b) a disposition or direction inserted after the signature was made.


Of particular reference, is the provision addressing bequests to witnesses as being void. 


Section 12 of the SLRA provides as follows:


     12. (1) Where a will is attested by a person to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it concerns,


(a) the person so attesting;


(b) the spouse; or


(c) a person claiming under either of them,


but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.


And, where a Will is signed for a testator by another person, s. 12(2) provides:


Where will signed for testator by another person


     (2) Where a will is signed for the testator by another person in accordance with section 4, to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest, or other disposition is void so far only as it concerns,


(a) the person so signing;


(b) the spouse; or


(c) a person claiming under either of them,


but the will is not invalid for that reason.


Where no undue influence


     (3) Despite anything in this section, where the Superior Court of Justice is satisfied that neither the person so attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the devise, bequest or other disposition or appointment is not void.




     (4) Where a will is attested by at least two persons who are not within subsection (1) or where no attestation is necessary, the devise, bequest or other disposition or appointment is not void under that subsection.


In the Barrett v. Bem Court of Appeal decision, the case involved Mr. Martin Lavin ("Martin") whose Will was challenged because the signature was not his, but rather that of his sister.  Martin's sister also happened to be the sole beneficiary of his estate.


The facts of the UK judgment were as follows: 

  1. Mr. Lavin made a Will on the day of his death;  
  2. Before appeal, the case had been tried twice: the disputed Will is in manuscript and purports to have been signed by Martin himself. In the first trial, the alleged Will was successfully challenged by one of Martin's nephews on the basis that Martin had not in fact, signed it.  At the second trial, the same challenge failed and the judge pronounced in favour of the disputed Will on the basis that it was signed at Martin's direction by his sister, Anne, who was also the sole beneficiary.

Grounds for Appeal:

  1. The facts found by the Judge did not amount in law to a direction to Anne to sign the Will on Martin's behalf; and  
  2. Since the signature was appended by the sole beneficiary under the Will, it ought to be declared invalid on grounds of public policy by analogy with the statutory rule that disqualifies an attesting witness from taking a benefit under the Will. 



The Court of Appeal opined: "that the testator must make some positive communication of his desire that someone else should sign the Will on his behalf. The reference to conduct and the res gestae is in the context of one who is capable of communicating by signs. We know that there are people suffering from conditions that make it almost impossible for them to communicate normally and that those who understand them can go to extraordinary lengths to enable them to make their wishes and feelings known..." [1]


The Court of Appeal noted at paragraph 37 of its judgment, the Judge's critical finding of fact was that after Martin had tried and failed to sign the Will, Anne "stepped in, took the pen and signed the Will on Martin's behalf."  There was no evidence in this case that Martin asked Anne to step in sign the Will; or that Anne asked Martin whether she could sign the Will before she stepped in.  It was noted Martin was fully alert and aware of what was going on, and therefore well able to communicate his wishes. Indeed, the evidence submitted was that the lack of protest or objection by Martin amounted to implicit direction to Anne to sign the Will. The court did not agree.  


The Court of Appeal did not consider it enough to find "a wish to direct and sign." Indeed, the Court of Appeal redirected the question: being the question is not whether Martin wished to direct and to sign, but whether he in fact did so. 


The court opined that some positive communication is required in order to amount to a valid direction. 


The court determined that Martin could have asked Anne to sign the Will but he did not; or he could have assented by word or not to a suggestion that Anne should sign the Will, but he did not, which amounted to points against, rather than towards the conclusion that Anne signed at Martin's direction. Moreover, the court opined that it cannot be assumed that Martin would have directed Anne to sign the Will, bearing in mind that she was the sole beneficiary under it.  The Court of Appeal found that the evidence fell short of establishing any positive communication by Martin expressing a direction or instruction to Anne to sign the Will.


The Court of Appeal determined that the evidence did not establish that the Will was properly executed. Moreover, there was insufficient evidence to support the Judge's ultimate conclusion that Anne signed the Will at Martin's direction.  Accordingly, the Court of Appeal allowed the appeal on the first ground. As to the second ground, the court found that it did not arise but echoed the Judge's view that it is plainly undesirable that beneficiaries should be permitted to execute the Will in their own favour in any capacity; and that parliament should consider changing the law to ensure that this cannot happen in the future.

[1] Barrett v. Bem, [2012] EWCA Civ 52, para 24

Upcoming Programs


LSUC: The Administration of Estates 2012

September 13, 2012, Web repeat October 23, 2012

Chair, Kimberly A. Whaley


  • Jordan Atin, C.S., Atin Professional Corporation - Estate Accounting
  • Clare Burns, WeirFoulds LLP and Jasmine Sweatman, C.S., Sweatman Law Firm - The Annotated Administration Checklist
  • Caterina Galati, Senior Competence Counsel. The Law Society of Upper Canada - Professionalism
  • Hilary Laidlaw, C.S., McCarthy Tetrault LLP and Scot Dalton, CEO, ERAssure Executor Liability Insurance - Estate Trustee Liability
  • Archie Rabinowitz, C.S., Fraser Milner Casgrain LLP - Limitation Periods
  • Martin Rochwerg, Miller Thomson LLP - Tax Planning

Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE12-0090401


STEP (Society of Trust and Estate Practitioners) Section Program:

Avatars, Assault Weapons and Anatomy:  The treatment of unique assets in an estate:  digital assets, weapons, sperm and other body parts.

September 19, 2012

Speaker: Erin Cowling - "Digital Assets"


OBA Trust and Estates Section Lunch Program

September 20, 2012

Moderator: Ameena Sultan


The World Congress on Guardianship / AGAC conference

Mid-October 2012

Info: http://agac2012.conorg.com.au/


LSUC Estate Litigation Practice Essentials 2012

October 30, 2012 - 9:00 am - 12:30 pm

Removal of Estate Trustees

Speaker: Kimberly Whaley, paper prepared by Kimberly Whaley and Erin Cowling
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE12-0101401 


LUSC Estates & Trusts Summit

November 14, 2012

Estate Claims Arising out of Remarriages

Speaker: Kimberly Whaley  


Canadian Centre for Elder Law (CCEL) 2012 World Elder Law Study Group
Advocacy and Aging: From Storytelling to Systematic Change

November 15, 2012
Vancouver, B.C.  

"Telling the Story of Elder Abuse in the Courts"

Speakers: Kimberly Whaley and Ameena Sultan

Info: http://www.bcli.org/news/events/conferences


STEP (Society of Trust and Estate Practitioners) Program

January 9, 2013

Estate Trustee Liability
Osgoode Hall Law School, The Donald Lamont Centre 

Chair: Kimberly Whaley 


LSUC Six-Minute Lawyer

April 24, 2013

Passing of Accounts: The recommended Best Practices for Passing of Accounts

Chair: Kimberly Whaley


LSUC Six-Minute Lawyer 

April 24, 2013

Elder Law

Chair: Kimberly Whaley


STEP (Society of Trust and Estate Practitioners) Program

May 8, 2013

Make Your Golden Years Golden...Planning For and Advising on Personal Care Powers of Attorney and Advance Directives

Osgoode Hall Law School, The Donald Lamont Centre 

Chair: Kimberly Whaley

Newsletter Archive

Past issues of our Newsletter can be viewed on-line by following this link to our Newsletter Archive:


Follow Our Blog via RSS Feed 

We continually add articles and posts to our blog and will post update notices via Twitter and on LinkedIn.  If you would like to follow our blog via our RSS feeds here is the link: 


Follow Us

 Follow us on Twitter


View our profile on LinkedIn


This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


Newsletter Contents
What Does "per stirpes" Really Mean?
The Case of the Missing Will
The English Court of Appeal Decision in Barrett v. Ben
Upcoming Programs
Newsletter Archive

Quick Links


Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464


Kimberly A. Whaley
C.S., TEP, LL.M.
(416) 355-3250

Mark Handelman
(416) 355-3254

Ameena Sultan
(416) 355-3258


Erin C. Cowling
(416) 355-3262

Benjamin D. Arkin
(416) 355-3264


Deborah Stade
(416) 355-3252


Bibi Minoo
(416) 355-3251


Michelle Shikatani
(416) 355-3255

Join Our Mailing List

If you were forwarded this newsletter and would like to receive future editions please join our mailing list by simply clicking the link above and completing the form.  Thank you. 

Whaley Estate Litigation