Daughter's gift of estate residue to her parents lapses because both died before she did
A Saskatchewan court has refused to apply the “armchair rule” to an estate to exclude a woman’s brother who was convicted of indecently assaulting her.
The residue of the estate fell under the provisions of Saskatchewan’s Intestate Succession Act, 2019 because the residual beneficiaries that the will named passed away before the testator did, the Saskatchewan Court of King’s Bench said.
Dawn, Glendon, Lorraine, and William Gilchrist were the children of John and Elsie Gilchrist. In the mid-1990s, William was convicted of indecently assaulting Dawn while she was a minor over a period spanning 1972 to 1981. He denied committing this crime.
In March 1991, Dawn executed a will, which was prepared and witnessed by a Saskatoon lawyer. It provided specific bequests to Glendon and Lorraine and the transfer of the estate’s residue to the parents. John died in May 1995, Elsie in December 2016, and Dawn in August 2022.
According to Lorraine, in the days leading to her sister’s death, the two of them discussed the possibility of amending her will to reflect their parents’ death. On Aug. 17, 2022, Dawn allegedly requested that a lawyer come to the hospital so that she could amend her will to leave her estate to Glendon and Lorraine. The next day, Lorraine allegedly arranged for the lawyer to visit the hospital, but Dawn died early that morning.
Upon her death, her gift of the estate’s residue to her parents lapsed because both had predeceased her. Section 8(2) of the Act provided that the residue would be distributed to Dawn’s three siblings.
Glendon, executor of Dawn’s estate, asked the court to apply the armchair rule to ascertain her testamentary intention. He also sought an order dividing the residue equally between him and Lorraine, with William getting nothing.
Glendon argued that transferring any part of the estate to William would go against Dawn’s testamentary intent, given the sexual assault conviction, Dawn’s lack of contact with William during her adult life, and Dawn’s acting as if William did not exist.
Lorraine alleged that Dawn did not know that a law existed that would make part of her estate go to William if her parents were named in the will and were deceased.
Armchair rule not applied
In Gilchrist v Gilchrist, 2023 SKKB 187, the Saskatchewan Court of King’s Bench dismissed the application. The court made the following findings:
- The will disposed of the entire estate when Dawn executed it
- The intestacy arose through the passage of time when the named residual beneficiaries died
- The objective of the armchair rule was to ascertain the meaning of the words that the testator wrote in the will
- The application of the armchair rule was limited
- The preference for avoiding an intestacy did not outweigh this limitation
Even if Glendon was able to persuade the court to take the broader view of the armchair rule, doing so would lead the court to attempt to ascertain whom Dawn would have intended to name as alternate residual beneficiaries in March 1991. The court said that it would not succeed if it made this attempt.
The evidence in this case supported the determination that Dawn meant to name Glendon and Lorraine as residual beneficiaries in August 2022, the court noted.
However, the evidence was insufficient to establish whom Dawn would have chosen as alternate residual beneficiaries and whether she would have considered naming Glendon and Lorraine as residual beneficiaries in March 1991, even though she did name them as beneficiaries of specific bequests at that time, the court concluded.
Dawn could have had other individuals in her life that she would have considered adding as residual beneficiaries in March 1991, the court said.
