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Wills and Estates: Gifts Contrary to Law

Leslie Taylor

The recent Alberta Court of Queen’s Bench decision of Stroh Estate (Re), 2022 ABQB 82, considers section 33 of the Wills and Succession Act, SA 2010, c W-12.2 and the disposition of a gift which is contrary to law.

The facts of Stroh Estate included that Norman Stroh was divorced and had two adult sons, Nicholas and Kristian. Kristian had three minor children. Norman died on April 28, 2017. His son, Kristian, was convicted of second-degree murder in relation to his death.

At the time of his passing, Norman’s Will provided the following:

To divide my estate equally among those of my children who are alive ten full days after my death, but if a child of mine is then deceased leaving one or more children then alive, those children are to receive in equal shares the share that deceased child would have received if then alive.

Importantly, the Alberta Court of Queen’s Bench confirmed that public policy precludes a criminal from benefitting from their own criminal act, such that Kristian was not entitled to benefit from his criminal act under Norman’s Will.

Section 33 of the Wills and Succession Act is instructive where a gift is found to be contrary to law, including being against public policy by operation of law:

Where gift is void or contrary to law

33(1) If a beneficial disposition in a will cannot take effect by reason of the disposition to the intended beneficiary being void, contrary to law or disclaimed, or for any other reason, then unless the Court, in interpreting the will, finds that the testator had a contrary intention, the property that is the subject of the disposition must be distributed

(a) to the alternate beneficiary, if any, of the disposition, regardless of whether the will provides for the alternate beneficiary to take in the specific circumstances,

(b) if clause (a) does not apply and the intended beneficiary was a descendant of the testator, to the intended beneficiary’s descendants who survive the testator, in the same manner as if the intended beneficiary had died intestate without leaving a surviving spouse or adult interdependent partner,

(c) if neither clause (a) nor clause (b) applies, to the surviving residuary beneficiaries of the testator, if any, named in the will, in proportion to their interests, or

(d) if none of clauses (a), (b) or (c) applies, in accordance with Part 3 as if the testator had died intestate.

(2) For the purposes of subsection (1)(a) to (d), the intended beneficiary is deemed to have predeceased the testator. [emphasis added]

Under section 33 of the Wills and Succession Act, Norman’s disposition to Kristian could not take effect by reason of the disposition being contrary to law: public policy, by operation of law, prohibits it.

In considering Norman’s disposition, the Court confirmed that under the Will, Kristian’s children did not receive a gift through Kristian. Rather, if Kristian was alive, they received nothing under the Will. However, Kristian’s children were seen to be “alternate beneficiaries”, in that if Kristian pre-deceased them, they received an equal share of the 1/2 estate residue gifted to Kristian.

The Alberta Court of Queen’s Bench relied on section 33(2) of the Wills and Succession Act in deeming Kristian to have pre-deceased Norman so as to not benefit from his criminal act, with the result being that 1/2 of the residue was to be distributed to the alternate beneficiaries, being Kristian’s three minor children.

2022-07-13T17:23:11+00:00July 26, 2022|Estate Litigation|
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