Will and Estate Planning: Avoiding Unintended Consequences
If you have a Will and have named a beneficiary (or beneficiaries) who fall within the definition of a child, grandchild, brother or sister, you will want to turn your mind to the anti-lapse provision of the Succession Law Reform Act (hereinafter, “SLRA”).
What is section 31 of the SLRA and how could it be relevant to you? As stated, it is an anti-lapse rule. It is intended to save a gift if a beneficiary named in your Will predeceases you and there is no alternate beneficiary named for that gift. Therefore, if a testator (the person making the Will) passes away and their Will provides for a gift to a child, grandchild, brother or sister, but that beneficiary had in fact predeceased the testator and there is no gift-over clause, the gift to that predeceased beneficiary could go to someone else. Specifically, if the predeceased beneficiary leaves a spouse or issue (“issue” meaning a person of direct lineal descent, such as a child or grandchild) who survives the testator, the gift may not lapse. Instead, the gift could pass as if it were made directly to the predeceased beneficiary’s spouse or issue (subject to some distribution rules), unless a “contrary intention” appears in the Will. While some individuals are perfectly content with this outcome, others may have wished to pre-plan for what would have happened to that gift if they had known that their beneficiary would predecease them (if they would have preferred for it not to pass to that person’s spouse or issue). This is but one unintended drafting consequence that can and does happen, so it is very important to consider whether you have or should include this contrary intention in your Will.
In a recent Ontario Court of Appeal decision, Devonport v. Devonport, 2025 ONCA 753, the Court confirmed that only clear, express will‑drafting reliably displaces section 31 and preserves the testator’s intended scheme. In that case, the testator gifted a property in Ottawa to her son. However, given that her son predeceased her and there was no contrary intention stated in her Will, her late son’s wife inherited the property.
You may be thinking, if my beneficiary (child, grandchild, brother or sister) were to predecease me, I will simply update my Will. However, it may not be that simple. A testator must have the requisite mental capacity to make or update a Will, which is something that could unexpectedly change at any point in time. Alternatively, the testator may have many other preoccupations, and they may not get around to it. Further, there will be an expense associated with updating the Will.
There are other issues that can arise as a result of the application of section 31. For example, if the gift was intended to be made to the beneficiary in stages, if the gift was to be subject to a protective trust, or if the gift was only to be disbursed once the beneficiary achieved a certain age, any or all of these intentions could be defeated as the beneficiary under this anti-lapse rule could receive the gift outright.
If you have any concerns about the wording of your Will, or if you do not yet have a Will, you should speak with a lawyer to confirm that your estate planning goals will be properly captured.
All of the above is provided for information purposes only and is not to be considered legal advice. Please ensure that you consult a lawyer in regard to your particular circumstances.
Giggey & Despatie LLP | 613-936-1800 | www.giggeydespatielaw.ca
