2.2 In this Will, a disposition to a person’s issue alive at a particular time “per stirpes” means the Trustee must divide the estate or the relevant part of it into a sufficient number of shares to make:
(a) five shares for each of the following, or three shares for each child of that person who died before that particular time but left issue alive at that particular time:
1. Daryl Joshua Sipila, of 417-531 West Bay Terrace, Victoria, B.C. V9A 5R3;
2. David Keelinge Homer, of 7094 Briarwood Place, born October 21, 1941;
3. John Twigg Homer, of 4565 East Sooke Road, RR6. Sooke, B.C. born July 18,
4 Ina Homer, of 4565 East Sooke Road, RR6. Sooke, B C. V0S 1N0, born November 24, 1954
(b) one share for each of the following;
1. Natasha Barrowman (Ne Reznechenko), of Lot 104 Mount Matheson, Sooke, B.C. V0S 1N0, born August 18, 1972;
2 Darcy Arnet of 4575 East Sooke Road, RR6 Sooke B.C. V0S 1N0;
3. Mark Woodger, of 621 Baxter Avenue, Victoria, BC V8Z 2H1;
4. Diane Nadene Johnstone, of 6 Trillium Court, Belleville, Ontario K8P 5M5
(c) I note that I have provided for my son, Devlyn Nicholson Milwarde-Yates “Devlyn”, born February 28, 1938 though the joint ownership of real property while I was alive. I understand that the property will revert to Devlyn on my death.
and the same principle shall be applied in any required further division of a share at a more remote generation because:
(i) each child (including a child who has died before that particular time) of that person will constitute a “stirp” or root for purposes of the division.
(ii) children will take in substitution for their parent, if their parent would have taken if alive at that particular time but died before that particular time;
(iii) children will not take if their parent is entitled to take and is alive at that particular time.
Don’t bother reading the quote again. It won’t make any more sense the second time you read it.
Although I don’t have any first hand knowledge about this will, I have a pretty good idea what happened. Lawyers work with precedents and use word-processing software. Sometimes the computer printers spit out some funny looking clauses. In this case it is apparent that the dispositive clauses (the parts that say who gets what) somehow got spliced into a clause defining the meaning of the term “per stirpes.” Perhaps it was pasted into the will in the wrong place.
Ms. Milwarde-Yates’ only living child, Devlyn Milwarde-Yates, argued that another clause in the will gave him the residue of the estate, or that his mother’s will failed to dispose of the residue of the estate. If the will did not dispose of the residue of the estate, then Devlyn Milwarde-Yates would receive it according the law in British Columbia for intestate estates. The evidence indicated that Ms. Milwarde-Yates did not want to leave her estate to her son.
After considering both the will and the evidence of the surrounding circumstances Mr. Justice Williams held that Ms. Milwarde-Yates intended to leave the residue to her estate to the beneficiaries named in paragraph 2.2, and interpreted that clause as though the first sentence read: “the Trustee must divide the estate into a sufficient number of shares to make….”
Mr. Justice Williams said:
In this case, I am convinced that the Deceased intended to dispose of her estate by way of her will, and went to considerable effort to accomplish that. I am also satisfied that she intended to pass the residue of that estate to the eight persons that she had selected, and whose names are set out in paragraph 2.2. It is clear to me that the purpose of that particular paragraph, however badly drawn, and located as it was under a heading that was obviously incorrect, was to bequeath the residue of her estate to them in the proportions stipulated. Indeed, the third of the sub-paragraphs, wherein she speaks of having made other provision for her son, supports my view of the matter, in that it is a logical adjunct to having given the bulk of her estate to someone other than her only child. It provides an explanation for such a disposition.
 In the result, I find that paragraph 2.2 should be construed in the manner set out above, with the additional direction that the word ‘shares’ should be preceded by the word ‘equal’. In that way, the Deceased’s will has the effect of advancing her obvious intentions. The plainly unintended result of an intestacy is avoided. I am satisfied that the bequests that result are not simply “drawn out of thin air” but are a reasonable exercise of the Court’s jurisdiction to construe a will.
How do we avoid this kind of problem?
In many cases lawyers catch these kinds of glitches on reading the first draft of a will, before the clients ever see a draft. But we all do make mistakes. Although there is no doubt that it is the
lawyer’s responsibility to make sure that the final draft meets a reasonable, professional standards, clients can and should be involved in the process.
When feasible, I like to send draft wills to my clients before they come in to sign the wills. I like to send the drafts by email. I ask my clients to read the will over carefully and advise me ahead of their next appointment if they notice any errors. This allows my clients to read the drafts in the comfort of their own homes, at their own pace. From time to time, my clients do pick up on some errors, such as a typographical error or wrong address.
There is some debate among estate lawyers about whether sending a draft out is a good practice. Some lawyers are concerned that their clients might sign the will themselves, perhaps improperly, instead of making another appointment to sign the will in the lawyer’s office. That has not been my experience.
When I meet with my clients to sign wills, I go over each clause in the will. I ask my clients to pay particular attention to the dispositive clauses. I also ask my clients to confirm the spelling of all names.
No system is foolproof. But with three people--the lawyer, the lawyer’s assistant and the client-- going over the will carefully, the risk that the final product will be deficient is minimal.