Sunday, May 16, 2021

The Bank of Nova Scotia Trust Company v. Rogers


A murderer may not inherit from his victim. This much is clear. But the implications on the rest of a will are not always so straightforward. This is illustrated by an Ontario case earlier this year: TheBank of Nova Scotia Trust Company v. Rogers, 2021 ONSC 1747 (CanLii).

Cameron Scott Rogers was convicted of the murder of both of his parents, Merrill Gleddie Rogers and David Blair Rogers. He was their only child. He was their only child. There is some indication that he suffered from a disability, but I stress that this is not a case where he was found not guilty by reason of insanity, which would likely have affected the outcome of the case.

His parents made wills leaving their estates to each other. In each case, the will said that if the other had died first, most of their estate was to be used to set up a trust for their son during his lifetime. The trustee would have discretion to make payments out of the income or capital to or for his benefit, with any income accumulated for 21 years to be paid to charities. On his death, or if he died before his parents, on the last of them to die, the remaining funds were to go to his children (or remoter descendants), but if he did not have descendants, then the remainder was to be used to buy annuities for Merrill Rogers’ three brothers.

Justice Labrosse of the Superior Court of Justice held that, because he was convicted of murdering his parents, Cameron Rogers was not entitled to the benefits under their wills. This is not surprising. The more interesting question is: what would happen to their estates?   the estates go to the parents next of kin as if thy died without wills? Under the wills, if he had died before them their estates would go to Cameron’s children, but he did not then have any children. Should the funds be held in trust in case some day he had children? He would be eligible for parole 20 years after his conviction, and it was possible he could then have children. Or should the estates be used to buy annuities for Merrill Rogers’ brothers?

Justice Labrosse identified three approaches to what happens to a beneficiary’s share of the estate of his murder victim. One approach is to deem that the beneficiary died before the will-maker, and the will is read as if the murder had died first. A second approach is a literal reading of the will. Under the second approach, if the will does not provide for the possibility that the beneficiary murders the will-maker, the gift fails and a gift of residue would under Ontario law go on an intestacy as if there were no will (in my view the law of British Columbia differs because of section 46 of our Wills, Estates and Succession Act). The third approach, which Justice Labrosse adopted, is the implied-intention approach. The court strives to determine what the will-maker would have wanted if the will-maker had contemplated what in fact occurred.

Applying the implied-intention approach, Justice Labrosse found that Merrill and David Rogers would not have wanted their estates to go by an intestacy, but would likely have wanted it to go to the other beneficiaries named in their wills. This leaves the question of whether the estates should be held to see if Cameron Rogers had children, or if the estates should be used to purchase annuities for Merrill Rogers’ brothers as if Cameron had died without descendants.

In considering this question, Justice Labrosse looked at the public policy implications. In his words:

[52]           This analysis also includes a requirement that the Court apply the “armchair rule” whereby the Court asks itself:  if David and Merrill could have been aware of the possibility of Cameron’s disentitlement and the reasons for it, would they nevertheless have wanted to benefit their future grandchildren?  If they had living grandchildren at the time of their death, that question would be easier to answer.

[53]           In considering the “armchair approach”, the Court must also add to the picture the reality of Cameron leaving prison at some point during his life sentence.  He could be in his mid-forties and have the knowledge that a two-million-dollar trust lies available to any children he may have.  In the context of the public policy issues surrounding the criminal forfeiture rule, there is a distinct possibility that this could lead to some type of misfeasance.  This is a distinctive element of applying the “armchair approach” in these circumstances.  If David and Merrill could have been aware of Cameron’s disentitlement (and the exact basis for it), would they have wanted for their estates to wait for Cameron’s release from prison and possibly fuel a decision to have children?  It is my view that this would fly in the face of the original public policy reasons for disentitlement and would not have been an outcome that either David or Merrill would have preferred.

Justice Labrosse treated the murder as a triggering event that accelerated the trust for Cameron, as though Cameron Rogers had died before his parents without descendants. He found that this approach most closely reflected the will-makers’ likely intentions:

[63]           In returning to the armchair intentions of David and Merrill, I conclude that their intention was to leave a life interest to Cameron and if he could not benefit from it as a result of a triggering event such as his death, it should pass to his children if he had any living at the relevant time.  The wills are structured around providing contingencies or “gifts-over” to account for a series of triggering events. The first of these events is the spouse predeceasing, the second is Cameron predeceasing, the third is Cameron predeceasing or dying leaving no issue then living and the fourth is one of the brothers either predeceasing or dying before the annuities have been fully distributed.  Cameron’s disentitlement is a similar triggering event which leads to the gift-over provisions of the wills. 

[64]           In this context, I conclude that Cameron is disentitled and that his disentitlement crystalizes at a time where he has no living issue. The criminal forfeiture rule plays a role in guiding the Court to accelerate the bequeath to Cameron and also to his unborn children.  If the true intent of the structure of these wills is to be respected, the estates should be kept in the family.  The intent of the testators was to ensure that upon the triggering events, the estates should pass to the next level of lineal descendant.  The triggering event in question is that Cameron is disentitled and has no issue surviving.  As such, the next level of lineal descendants are Merrill’s three brothers, subject to the annuities.  

The outcome is that the funds in the estates will be used to purchase annuities for Merrill Rogers’ three brothers.

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