Dice Estate, Re,

• Jurisdiction: Ontario
• Judge: Rosenberg, Simmons and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2012 ONCA 468,(2012), 293 O.A.C. 190 (CA)
• Date: 04 January 2012

Dice Estate, Re (2012), 293 O.A.C. 190 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.017

Rachel Lindsey Dice, Wesley James Dice and Serra Jean Butts (applicants/respondents) v. Suzanne Dice, Estate Trustee of the Estate of James Edgar Dice, deceased, Marlene Marguerite Buck, Estate Trustee of the Estate of Joseph Wesley Dice, deceased, Eileen Mary Dice, Marlene Marguerite Buck, Suzanne Dice and Stacey Dice (respondents/appellants)

(C54003; C54197; 2012 ONCA 468)

Indexed As: Dice Estate, Re

Ontario Court of Appeal

Rosenberg, Simmons and Armstrong, JJ.A.

June 29, 2012.

Summary:

A testator left his wife a life estate and the residue of the estate was to be divided equally between his son and daughter "per stirpes". The son survived his father but predeceased his mother, the life tenant of his father's estate. An issue arose as to who would be entitled to the son's share of the residue upon his mother's death.

The Ontario Supreme Court, in a decision reported [2011] O.T.C. Uned. 3641, held that the use of the words "per stirpes", in this case, indicated an intention by the testator to benefit the families of each of his children equally if either of his children predeceased his wife. Therefore, the judge declared that the son's children were entitled to his share of the residue of his father's estate. Other family members appealed.

The Ontario Court of Appeal dismissed the appeal.

Wills - Topic 7381

Construction - Quantity of interest taken - Concurrent gifts - When donees take per stirpes - Family distribution - A testator left his wife a life estate with the residue to be divided equally between his son and daughter "per stirpes" - The son survived his father but predeceased his mother - At issue was who would be entitled to the son's share of the residue upon his mother's death - An applications judge held that the words "per stirpes", in this case, indicated the testator's intention to benefit the families of each of his children equally if either of his children predeceased his wife - Thus, the son's children were entitled to his share of the residue of his father's estate - Other family members appealed - The Ontario Court of Appeal dismissed the appeal - See paragraphs 46 to 95.

Words and Phrases

Per stirpes - The Ontario Court of Appeal discussed what meaning, if any, that should be given to the phrase "per stirpes" as it appeared in a will - See paragraphs 46 to 92.

Cases Noticed:

Lau Estate v. Mak Estate et al., [2004] O.T.C. 718; 10 E.T.R.(3d) 152 (Ont. S.C.), consd. [para. 6].

Lau v. Mak Estate - see Lau Estate v. Mak Estate et al.

National Trust Co. v. Fleury, [1965] S.C.R. 817, refd to. [para. 36].

Brown Estate, Re, [1934] S.C.R. 324, refd to. [para. 36].

Singer v. Singer, [1932] S.C.R. 44, refd to. [para. 36].

Burke, Re, [1960] O.R. 26, refd to. [para. 37].

Shamas, Re, [1967] 2 O.R. 275 (C.A.), refd to. [para. 37].

Perrin v. Morgan, [1943] A.C. 399 (H.L.), refd to. [para. 37].

Browne v. Moody, [1936] A.C. 635 (P.C.), refd to. [para. 53].

Karkalatos Estate, Re, [1962] S.C.R. 390, refd to. [para. 56].

Shelley's Case, Re (1581), 76 E.R. 206 (K.B.), refd to. [para. 62].

Foxwell v. Van Grutten, [1897] A.C. 658 (H.L.), refd to. [para. 62].

Strittmatter v. Stephens (1983), 40 O.R.(2d) 463 (H.C.), refd to. [para. 72].

MacInnes, Re, [1958] O.R. 592 (H.C.), refd to. [para. 76].

Jackson Estate (Re), [1975] B.C.J. No. 723 (S.C.), refd to. [para. 76].

Sitter Estate, Re, [1977] 2 W.W.R. 356 (Sask. Surr. Ct.), refd to. [para. 76].

Heslop v. Canada Trust Co. (1994), 6 E.T.R.(2d) 315 (B.C.S.C.), refd to. [para. 76].

Hegedus Estate, Re (1998), 225 A.R. 154 (Surr. Ct.), refd to. [para. 76].

Martyn v. Taylor (2003), 50 E.T.R.(2d) 220 (Ont. S.C.), refd to. [para. 76].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed.), vol. 2, p. 260 [para. 80].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000), para. 11.148 [para. 82].

Counsel:

Mark Abradjian and Brad Wiseman, for the appellant, Marlene Marguerite Buck;

Richard Skibinski and Sean Heeley, for the appellants, Suzanne Dice, Estate Trustee of the Estate of James Edgar Dice, deceased, and Suzanne Dice;

Matt Moloci and Mike Stanton, for the respondents.

This appeal was heard on January 4, 2012, before Rosenberg, Simmons and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court, by Simmons, J.A., on June 29, 2012.