Don't Say "Children Per Stirpes"

I have written previously about how I use the words "per stirpes" in a will or trust, as a method of distribution among issue (children, grandchildren, great grandchildren etc.). I find that a gift to "children per stirpes" or to a named person "per stirpes"is confusing. It can lead to problems in interpreting the document, and expensive court applications. (You can read my previous post explaining the meaning of the term "per stirpes," and in which I give some examples here.)

Recently, while doing some research on how Canadian courts have interpreted the phrase "children per stirpes," I came across a decision of Mr. Justice Cullity of the Ontario Superior Court of Justice in Lau v. Mak, 2004 CanLII 6673, in which he deplores the misuse of the terms. In his decision, he explains the meaning of the words "per stirpes" as follows:

It is hardly necessary to say that the words are not part of everyday linguistic usage. They are essentially words selected by lawyers engaged in drafting wills and they have a long-established, elaborate and precise meaning that is unlikely - to say the least - to be familiar, or apparent, to clients with no legal background. They refer essentially to the manner in which property is to be distributed between, or among, beneficiaries described in a will. They are not themselves descriptive of the beneficiaries. As contrasted with a per capita distribution, a distribution per stirpes effects a division of property in accordance with stirpes or stocks of descent. In ordinary language, a division in equal shares per stirpes will allocate one share to each family of beneficiaries while, under a per capita distribution, all beneficiaries will share equally.

Later in his judgment, Mr. Justice Cullity says,

If the words "per stirpes" are to be given their traditional, and technical, meaning, it is obviously essential that more than one stirps, or family, be represented in the description of the beneficiaries in the will. It is, I believe, for this reason that a gift to children of the testator, or of some other person, in equal shares per stirpes is, as White J. suggested in Re Fraser Estate (1986) 23 E.T.R. 57 (Ont. H.C.), at page 75, a contradiction in terms if the word "children" is to be given its natural - and its primary legal - meaning. Such gifts surface with regrettable frequency from time to time in Canada and their construction has given rise to difficulty.

Mr. Justice Cullity then cites decisions in which the courts have departed from the technical meaning of the phrase "per stirpes" and found them to be descriptive of the beneficiaries. He says that the courts have been reluctant to attribute ignorance or confusion about the concept to the professionals who have drafted the wills considered in those cases. But, Justice Cullity does not share that reluctance:

References to gifts per stirpes are, as I have indicated, essentially lawyers’ expressions and, unless constrained by authority, I would be inclined to interpret them in the light of their traditional meaning and ignore them if, so construed, the will is not intelligible without attributing an unusual meaning to the other words of the Will. I would do this not simply on the basis of the principle that technical terms are generally to be given their technical meaning but, also, because the term "per stirpes" is an essential and peculiarly valuable part of a drafter’s arsenal. Until such time as the proponents of plain-language drafting can find a simple substitute that will embrace all of the features of a stirpital decision that have been painstakingly elucidated in the past, the court should, I believe, be reluctant to accept, and impliedly approve, distortion of the concept. To do so would be to encourage sloppy drafting and to introduce uncertainty into a process in which certainty is always a principal objective. It is of the utmost importance to testators that their solicitors should be able to rely on the established meaning of legal terms. If it appears that the drafter has employed such terms in a different sense, I would, in the absence of a clear indication of the intended meaning, prefer to hold that the words were inserted by inadvertence or, by virtue of the drafter’s misunderstanding of the concept of a stirpital gift, and that no intelligible meaning should be attributed to them – rather than to speculate about the nature, and extent, of the misconception and then to speculate further as to what the drafter’s resulting intention may have been.

It may be that the words "per stirpes" are used differently in other jurisdictions, but in Canada, or at least in British Columbia and Ontario, don't say "children per stirpes."