Who Gets What When You Die Without a Will

Die Without a Will?

My late mother was convinced that if you die without a will, it all goes to the government.

I don’t know where that notion came from, but she wasn’t the only person who believed that.

If a person dies without a will, their estate is distributed in accordance with British Columbia’s “intestacy” laws. A person who wishes to administer the estate must apply to a Court in British Columbia to obtain a “Grant of Letters of Administration.”

The provisions of the Estate Administration act provide for such occurrences, and the current formula ( about to change later this year at an unknown date) is as follows:

If you die without a will Intestacy laws prescribe that the estate will be distributed as follows, in the listed priority:

  1. If there are no children and a spouse, the estate goes to the spouse.
  2. If there is no spouse and only children, the estate is divided equally among the children. If a child predeceases the parent, but leaves children (for example, grandchildren of the deceased person), then the grandchildren inherit their parents’ share of the estate.
  3. If there is a spouse and children, the spouse is entitled to:
    (a) the first $65,000
    (b) a life estate in the home
    (c) household contents
    (d) half of the residue if there is one child, or 1/3 of the residue if there is more than one child.
    The remainder is divided equally among the children.
  4. If there is no spouse or children, the estate goes to the parent(s).
  5. If there is no spouse, children or parents, then the estate is divided between brothers and sisters. If a brother or sister predeceases but leaves children (the nieces and nephews), then the nieces and nephews inherit their parents’ share of the estate.
  6. Alternatively, the estate is divided between nieces and nephews.
  7. Alternatively, the estate is divided between the next of kin of equal degree of blood relation

– See more at: http://www.disinherited.com/blog/who-gets-what-when-you-die-without-will#sthash.Ipuiz1ff.dpuf

Charitable Intent Found In Impractical Trust, Cy-Pres Doctrine Applied

Bentley v Anglican Synod of the Diocese of New Westminster 2009 BCSC 1608 is indicative of the type of litigation that can ensue between various charities that are or had previously been closely aligned.

Several churches in recent years have undergone bitter disputes amongst its congregation to do with issues such as same-sex marriage.

The elderly testatrix bequeathed property in Hong Kong worth approximately $2.2 million to “the building fund of the Church of the Good Shepherd”, which was her home church.

However due to the decision of the Bishop to authorize the right for blessing of same-sex relationships, several congregations left the diocese, including the named church.

The plaintiffs brought an application for an order for a cy-pres scheme for the proceeds from disposition of the property, and succeeded.

The court found that the bequest was to the parish, not the congregation.

The incorporating declaration of the parish stated that it was “Chinese community in Greater Vancouver Regional District”

The court found that the testatrix intended the proceeds to be applied to build the needs of the parish serving the Chinese community.

However all the churches with substantial Chinese congregations had left the diocese and affiliated with the Anglican Network in Canada.

Accordingly the court found that it would be unlikely there would be a need in the diocese for new building for the Chinese community.

Accordingly the court ordered a scheme for the funds to be held for the building needs of the Anglican Network in Canada congregation that best fulfilled the testatrix charitable intent.

The decision contained a good deal of discussion on the doctrine of cy-pres:

 

” The approach to determining a testator’s intention was recently set out in Re Johnston Estate, 2008 BCSC 1185 at para. 18, 42 E.T.R. (3d) 286:

When attempting to glean a testator’s intentions in the context of a possible charitable bequest, the law has taken a broad approach with a view to finding such an intention where the evidence supports it.  It is not a matter of asking what a reasonable person in the place of the testator would have meant, but rather attempting to discern what the specific testator meant when he or she made the bequest. The Will itself is the primary source of that intention, but it is not the only source. Regard may be had to the surrounding circumstances, and that is so whether on its face the Wll is ambiguous or not.

Cy- pres is a remedy used to save an existing trust that is otherwise impossible or impracticable to perform. Donovan W.M. Waters, ed., Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005) at 773 describes the cy-pres doctrine in these terms:

It sometimes happens that when the donor’s instrument of gift takes effect, the charitable object or the required mode of achieving the object cannot be carried out. The court will then by order approve a scheme, or require a scheme to be drawn up, for the trust property to be applied to an object or mode of achieving the object which is as close as possible to that set out by the donor.  For the court to have this jurisdiction two things must be established; first, that it is impossible to carry out the object or mode of attainment, or, if it is indeed possible, that to carry out the object or mode would in the circumstances be impracticable. Second, it must be shown that the donor in making the gift had a general or overriding charitable intent. If both tests are satisfied, then the court as part of its inherent jurisdiction will, in its discretion, make the appropriate order for a cy­pres scheme.

[323]  A number of prerequisites to cy-pres jurisdiction can be drawn from the foregoing:

(1) the donor must have transferred property in trust for a particular charitable purpose or object;

(2) it must be impossible or impracticable to administer the trust according to that purpose or object; and

(3) the donor must have demonstrated a general or overriding charitable intent. Where these conditions are met, the court then has jurisdiction to order a scheme for the trust property that is as close as possible to that intended by the donor.

[324] An example of a case involving religious property in which the cy-pres doctrine was invoked is Parish of Christ Church v. Canada Permanent Trust Co. A testator left part of his estate in trust for a parish corporation. The trust income was permitted to be used for church repairs but the capital was only to be used for the purpose of constructing a new church, whenever that might occur. Parish members applied to vary the terms of the trust on the basis of the cy-pres doctrine. They argued that the existing historical building required extensive repairs and renovations, and they sought to be permitted to direct the funds to that purpose. They additionally submitted that even if the church were accidentally destroyed some time in the future, insurance proceeds would cover the cost of rebuilding.

[325]  Rogers J. held that the arguments advanced by the plaintiffs did not justify application of the cy-pres doctrine. He observed that though laudable, the plaintiffs’ present desire to preserve the old church did not bind future church officials who might hold a different view of the matter. He also considered irrelevant the fact that the church was adequately insured, as it could not be assumed that the policy would always be in force or cover every contingency. Ultimately, Rogers J. wrote, the Court had to concern itself with the wishes of the testator as to the disposition of the property, not the wishes of others; the testator’s intention in that case was clear.

[326]  In Re Lysaght, [1966] 1 Ch. 191 (Chancery Div.), is another example of the doctrine being invoked. The testatrix had bequeathed funds to the Royal College of Surgeons for scholarship purposes. A recipient had to be “of the male sex and the son of a duly qualified British born medical man … and any such student must be a British born subject and not of the Jewish or Roman Catholic faith”.   The Royal College declined to accept the bequest on those terms, stating that the exclusion of students of the Jewish and Roman Catholic faiths was “so invidious and so alien to the spirit of the college’s work as to make the gift inoperable in that form.” (It did not appear to object to the other restrictions.) The College was willing to accept the gift with that provision deleted.

[327] The Court held that the paramount intention of the testatrix was that the College be the trustee of an endowment fund. If the provision requiring religious discrimination was insisted upon, the College would disclaim the trust and thus defeat the testatrix’s paramount intention entirely. Performance of the trust was therefore impracticable. The Court ultimately ordered that the trust as set out in the will be amended by omitting the words “and not of the Jewish or Roman Catholic faith”. As the Court wrote at 207, “[t]he impracticability of giving effect to some ineffectual part of the testatrix’s intention cannot, in my judgment, be allowed to defeat her

Will Invalid For Not Being Signed At Its End

Will Invalid

Ellis v Turner 20 ETR (2d) 306 BCCA involved a decision of the British Columbia Court of Appeal were by the court upheld the trial judge’s decision that the will of the deceased was invalid by reason of the fact that he printed his name at the top of the will document but not at the bottom of the document.

The will was declared not to be testamentary and the testatrix was declared to have died intestate

Section 4 of the wills act says that subject to section 5, a will is not valid unless at its end is signed by the testator or signed in his name by some other person in his presence and by his direction.

The same provision also provides that the testator must make or acknowledged his signature in the presence of two or more attesting witnesses present at the same time, and that two or more of the attesting witnesses subscribe the will in the presence of the testator.

” The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.”

Marriage Separation Agreement Not a Bar to a Wills Variation Claim

Marriage Separation Agreement

Ward v. Ward et al, 2006 BCSC 448 is one of a few BC court decisions that hold that a marriage separation agreement is not a bar to a claim subsequently brought under the Wills Variation act by a surviving former spouse.

 

The rules applying to Wills Variation claims are different from the harsher divorce laws as per the Supreme Court of Canada’s decision in Hartshorne v Hartshorne (2004) SCJ  NO. 20 ( SCC)

 

The defendants,  Ward and David  Ward, are beneficiaries of their deceased father’s estate. Their father, David Forsyth Ward, divorced their mother and, in 1986, married the plaintiff, Shirley Ann Ward.

Two days before their wedding, David Forsyth Ward and Shirley Ann Ward signed a pre-nuptial agreement (the “marriage agreement”), clause 14 of which states:

14.      The Wife is not either during the Husband’s lifetime, or after his death, should he predecease her, save and except as may be expressly provided in a valid Will and Testament of the Husband, to take, claim,demand or receive any right in any property that he might own at his death, nor is she to demand, take or receive any dependant’s award or allowance as provided for by the Wills Variation Act, or similar legislation; AND SAVE as otherwise herein provided each party hereby forever waives, releases and relinquishes to the other and to the heirs, executors, administrators, devisees, legatees and assigns of the other all rights, interest or claims of inheritance and to a distributive share in the estate of the other (in the event of intestacy), either as widow, widower, heir, survivor, distributee, or next of kin in and to all of the estate of the other whether now owned or hereafter acquired.

David Forsyth Ward died in September 2004. By a will dated December 22, 2000, he left the entirety of his estate, with the exception of his pension benefits, to his two adult sons (the “will”).

In April 2005, the plaintiff commenced an action claiming, in part, under s. 2 of the Wills Variation Act, R.S.B.C. 1996, Chap. 490, for a declaration that the will fails to make adequate provision for her proper maintenance and support.

The court firstly reviewed some existing case law :

“In Boulangerv. Singh, [1984] B.C.J. No. 3163 (C.A.), the court upheld the decision of the trial judge that the separation agreement was not a bar to recovery under the Wills Variation Act. Without discounting in any way the evidentiary importance of the separation agreement, the court said this:

Thus, an agreement between parties may be perfectly suitable at the time it is made, and it may be treated as binding upon the parties during the lifetime of the testator. But, having regard to the scope and policy of the statute and the public interest, the moral duty of the testator may have to be reviewed in a wider context, and in the light of the circumstances existing at the date of the death of the testator.

Later, the court referred to the “facts of their marriage, separation arrangements and conduct after separation” as affecting the appellant’s moral claim upon the testator (at para. 29). The court reapplied the Boulangerlest in Wagner v. Wagner Estate, [1991] B.C.J. No. 3404 (C.A.). There, the court reaffirmed that the moral duty must be assessed as at the date of the death of the testator.”

 

  Finally, counsel referred to the trial and appellate court decisions in Chutter v. Chutter Estate. I need only refer to the latter, found at [2000] B.C.J. No. 653 (CA), in relation to the issue at hand, namely whether the agreement operates as an automatic bar. Mackenzie J A., for the court, stated:

The trial judge correctly, in my respectful view, did not consider the separation agreement to be an automatic bar to the appellant’s claim, but that it was a factor to be considered in weighing the merits of the appellant’s moral claim, (para. 9)

What Does a Hotchpot Clause In a Will Mean?

Hotchpot clause has been around since at least the 12th Century, although disinherited.com has seen fewer in more recent years than even 25 years ago.

The purpose of such a clause in a will is to equalize the benefits that beneficiaries have or will receive, as advances during the life of the testator, so as in the words of Re Cosier (1897) 1 Ch. 325 ( C.A.)” :

“What is the object of every hotchpot clause? It is simply to prevent a person to whom a testator has left a share of his estate, and who has been advanced in the testator’s lifetime, from obtaining, by the combined effect of the bequest and the advance, more of the testator’s property than he intended the legatee should have.”

 

Black’s Law Dictionary defines “hotchpot” as:

“the blending and mixing [of] property belonging to different persons, in order to divide it equally.

Anciently applied to the mixing and blending of lands given to one daughter in frank marriage, with those descending to her and her sisters in fee-simple, for the purpose of dividing the whole equally among them; without which the daughter who held in frank marriage could have no share in the lands in fee-simple. Hotchpot or the putting in hotchpot, is applied in modern law to throwing the amount of an advancement made to a particular child, in real or personal estate, into the common stock, for the purpose of a more equal division, or of equalizing the shares of all the children.”

Thus in order to achieve this equity, the testator might in his will refer to the fact that certain property :

 

1) has already been transferred and that it should be brought into account by hotchpot;

2) a debt owing at death is in turn converted into an advancement by way of a loan and brought into account by hotchpot

– See more at: http://www.disinherited.com/blog/what-does-hotchpot-clause-will-mean#sthash.g6kiB7FU.dpuf

Estate Funds Not to Be Used To Defend Wills Variation Claim ( S. 60 WESA)

Injunction

Defendants may not use estate funds to defend their personal interests in wills variation cases ( now section 60 WESA)

As plaintiff’s counsel, Steernberg v. Steernberg Estate (2007), 33 E.T.R. (3d) 78, 74 B.C.L.R. (4th) 126, 40 R.F.L. (6th) 106, 2007 BCSC 953, 2007 CarswellBC 1533, Martinson J. (B.C. S.C.); additional reasons to (2006), 2006 CarswellBC 2751, 32 R.F.L. (6th) 62, 28 E.T.R. (3d) 1, 2006 BCSC 1672, [2006] B.C.J. No. 2925, D. Martinson J. (B.C. S.C.)   is one of my favourite cases, primarily for the reason in the headnote.

Prior to this case, it was not uncommon for defendants to routinely use estate funds in the hope of depriving a plaintiff of sufficient resources to continue the fight.

Steerberg levels the playing field  by making each party pay for their own legal costsas the litigation proceeds,  save for the executor, who must remain neutral in the litigation.

Here are the facts of Steerberg:

The Wife, husband’s son, husband’s three daughters and husband’s brother-in-law were beneficiaries under husband’s will.

The  Plaintiff wife challenged husband’s will — Husband’s son was executor of will.

An Offer to settle made under R. 37 of Rules of Court, 1990 was signed by son as executor and other four beneficiaries, but not on behalf of son in his personal capacity as beneficiary

Legal fees for defendants’ litigation counsel of $148,250.62 and legal fees of counsel for executor of $72,895.24 were deducted before net values of estate were calculated

Shortly after the  trial ended and before reasons for judgment were issued, the estate paid defendants’ litigation counsel’s invoice of $60,700

None of these payments were made or recorded with wife’s consent and no funds from estate were made available to wife before, during or after trial for her legal fees.

During the trial, the wife raised concern that defendants took substantial sum of money out of estate for legal fees to defend action before trial started

Parties agreed that issue would be decided after Court gave its decision on whether will should be varied

Aubsequent to the trial this hearing was held to determine that issue and costs generally

It was inappropriate to withdraw funds from estate at start of litigation, or throughout course of litigation to fund defence of Wills Variation Act claim in absence of court order or unanimous agreement of beneficiaries

 In Wills Variation Act claim validity of will itself was not being challenged and there was no need for executor to “defend” will

The son was not entitled, in his neutral role as executor, to make a R. 37 offer and he did not join in the offer in his personal capacity as beneficiary

It was not offer made on behalf of all persons beneficially interested in assets of estate and hence would not be binding on estate

The losiing beneficiaries must pay wife’s costs personally, not out of estate

It was directed that executor pass his accounts before Registrar and that Registrar enquire into and make recommendations with respect to net value of estate after taking into account appropriate legal fees and income that ought to have been earned on funds had they remained invested.

Conditional Gift In Will Found Invalid

conditional gift
A Conditional gift in will is surprisingly common, and depending on their particular proviso, the Court may or may not uphold the gift.
The 1996 BC case of Unger v Gossen is a case where the conditional gift was found to be invalid.The testator in BC left the residue of his estate to nephews who lived in a foreign communist country, the USSR , provided they become residents of Canada within 15 years of her death.

If the nephews did not fulfill this immigration condition, or died before qualifying, then the children of that nephew were to receive his share on the condition that they become residents of Canada within 16 years of the testators death

The testator became mentally incapable to change her will after communism collapsed in the country before her death.

The nephews by operation of law were not able to become residents of Canada. An expert opinion from an immigration lawyer opined that due to the selection criteria set out in the Immigration Act, none of the nephews would be eligible to immigrate to Canada.

All of the potential beneficiaries agreed that the estate should be divided equally amongst the nephews, and the executor sought a Court order to that effect.

The Court found the conditional gift to be a condition precedent that should be found to be invalid.

The Court held that the main consideration of the testator was her intention to provide for the nephews, and the condition precedent she provided was impossible to perform due to the laws of Canada’s Immigration Act.

The purpose of the condition precedent was to ensure that her estate went to the nephews directly, and did not fall into the hands of the Communist government, which was known to occur.

It was the gift, and not the condition precedent that was the testator a motivation, and the performance of the condition was not the very reason for the gift, and thus the condition failed.

The court reviewed several similar decisions, as well as Feeney, the Canadian Law of Wills, 3d edition at page 246, that stated in part that condition precedents in wills that are impossible to perform, that are so known to the testator, should be disregarded. It must be shown that the performance of the condition was not the sole motive for the bequest.
Similarly, if the impossibility was not known to the testator, or if the condition when created was possible, but has since become impossible by an act of God, or a contrary law, or some act not attributable to the testator, then both the legacy and the condition are void.

– See more at: http://www.disinherited.com/blog/conditional-gift-will-found-invalid#sthash.4yH7wqci.dpuf

Beware The Words Issue Per Stirpes and Per Capita

Legal terms

Issue per stirpes and per capita should not be used when drafting wills.

There seems no end to the ongoing litigation that arises in will interpretation cases due to the coontinued use of the legal terms” issue per stirpes” or “issue per capaita” and other such technical words in wills drafting.

The said words have been around for centuries and have very specific meanings in legalese, but the problem conitnues to be that they are often used.

incorrectly and lead to the very litigation that they were presumably used to avoid

The Ontario Court of Appeal case of Dice v Dice Estate 2012 CarswellOnt 8608 is juut the latest of a plethora of caselaw that has developed due to the

misuse of these terms of art.

Disinherite.com has written  previous articles  thata are on the website realting to Wills Drafting that explain in more detail where the confusion mostly occurs

The word “issue” used only by itself has been interpreted to mean all of the lineal descendants of the deceased, which can often be a huge number

 

“issue per stirpes” means that if a child of the deceased predeceases the testator, then in that event, the share “goes down” to the children of the

predeceased child,  the grandchildren,  instead of the surviving children.

“Issue per capita” means that the predeceased child’s children do not inherit and instead the share of the deceased child instead goes equally to the surviving

children, the siblings.

In the Dice case the deceased left his  estate to his wife for her lifetime use and then the residue to the two children “per stirpes”

One child died in 2000 and the wife died in 2010.

Both the children of the deceased child, as well as the surviving child claimed the share of the deceased child

The court awarded the share to the children of the deceased child, holding that the words “per stirpes” were deliberately used as the testator realized that one

child might die before his wife which is what happened.
The court held that despite no conclusive authority existed, it did not need to as the most logical meaning was that the use of the phrase conveyed the intention

to benefit the testator”s children”s children,  ie grandchildren

Per stirpes had to have some meaning and the court of appeal upheld the trial judges finding that the grandchildren inherited their deceased parents share

disinherited.com stresses that words such as children and grandchildren should be used in wills drafting,  rather than precise legal terminology that invaribly is frequently misused.

– See more at: http://www.disinherited.com/blog/beware-words-stirpes-and-issue-wills-drafting#sthash.HKbrBuu8.dpuf

“Money and Cash” Interpretted In Will

MOney cash meaning

“Money and Cash” Interpretted In Will

The words used in many wills are often ambiguous or capable of different interpretations,which often then results in a court application to determine the meaning of the words used in the will.

Such was the case with the use of the words “money and cash” in the case of ThIemer Estate v Clapper  2012 BCSC

The deceased’s estate consisted of a variety of various assets, including shares in three private companies, bank accounts, GIC’s, a mortgage, property, an income tax refund, a death benefit and personal effects.

His will directed that his surviving spouse be paid ” the balance of any money left  at the time of my death”.

His will defined ‘money” to specifically include ” shares”

The remaining assets in the residue  were to be held in a spousal trust for her lifetime and then after her death were to go to various family members

The executor brought a Petition to court to determine which assets were included in the ‘money’ bequest.

The court held that shares in a private company could not readily be converted into money such as shares in a public company can, so the private shares were not included in ‘money”, and the court held that the testator only interned his shares in private companies to be included in the definition of ‘money”

The fact that the testator did not own any public shares was not determinative, as if the shares in the private company were included then there would be very little residue, and would be inconsistent with the overall intention of the will

The management of the private companies was demanding and complex and it was consistent that the shares would go into the spousal trust and be managed by the lawyer and accountant who were appointed the executors.

The bank accounts and GiC’s were clearly cash and money, but the mortgage was not as it was more akin to an interest in land

Similarly, the death benefit and income tax returns could not be included as they were not payable until after death

Lastly, the shareholders loans were not included as the viability for payment depended on the companies solvency and liquidity

– See more at: http://www.disinherited.com/blog/money-and-cash-interpretted-will#sthash.7LN9yWB3.dpuf

Wills Interpretation: The Courts Have Presumption Against Intestacies

Young v Abercrombie 2008 BCSC 389 involved an estate dispute relating to a conflict between the wording of the deceased’s will and the subsequent codicil to the will.

Donald William Abercrombie (“Donald”) died on December 16, 2005, leaving a will executed on November 19, 1981, and a codicil to the will executed on October 28, 2004.  He was survived by his two adult children, Kim Amanda Young (“Kim”), the named Executor, and Barry Donald Abercrombie (“Barry”).

[3]                Clause 4(d) of Donald’s will directs the Executor to:

… divide the rest and residue of my estate equally between my two children, KIM AMANDA ABERCROMBIE and BARRY DONALD ABERCROMBIE.  If either of my said children shall predecease me leaving issue, then such issue shall take in equal shares per stirpes the share such child would have taken if living.  If any of my said children shall predecease me leaving no issue, then the share to which such deceased child would have been entitled shall be transferred to my surviving child for his or her own use absolutely.

[4]                The codicil sets out the following:

Should either of my children become incapacitated due to illness or accident it is my instruction that my Trustee invest my incapacitated child’s share of my estate into investments or a form of annuity.  My Trustee shall have the sole discretion to invest monies and advance monies as she or he she sees fit.

In all other respects I confirm this will.

 

The court reviewed various rules of construction of wills and turned to the issue of the strong presumption that the probate courts have against finding an intestacy. The courts will where possible, construe a will so as not to lead to an intestacy.

 

 

 “Further, in the construction of wills, there is a strong presumption against intestacy.  This often-cited principle was articulated by Lord Esher, M.R. in Re Harrison Estate (1885), 30 Ch.D. 290 at 393-4, as follows:

There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will.  You ought, if possible, to read the will so as to lead to a testacy, not an intestacy.  This is a golden rule.

 

In Baldissera v. Baldassi (1997), 18 E.T.R. (2d) 128 (B.C.S.C.) at para. 10, Edwards J., citing The Canadian Law of Wills, vol. 2, confirmed that:

There is a presumption against intestacy and the court will prefer an interpretation of the will which avoids an intestacy.

And further, at para. 11, Edwards J. held:

The court on reading the will as a whole may conclude that the testator clearly intended to dispose of his entire estate.  Once such an intention is clear the court will construe the will so as to give effect to the will in preference to a construction which will result in a partial or total intestacy.

A similar conclusion is found in Jankowski v. Pelek Estate, [1996] 2 W.W.R. 457, 131 D.L.R. (4th) 717 (Man. C.A.), where Helper J.A. at para. 76 stated, “[i]f the will is capable of two constructions, one which disposes of the whole estate and the other which leaves part of the estate undisposed of, the court will prefer the former.”

 

And finally, if it is reasonable to do so, the will and codicil should be read in harmony so as to avoid an intestacy.  Donald clearly intended to dispose of his entire estate, and it is therefore the role of the court to construe his will and codicil in a manner that does so.

[36]            Here, if an intestacy is the result, one of Donald’s children, Kim, will receive 75% of his estate, while the heirs of the other, Barry, will receive 25%.  That result does not confirm Donald’s will; it re-writes it, both in respect of the bequest to Barry, and also to Kim.  The intended equal sharing between Donald’s children would not be the result.

[37]            In all of the circumstances, I have concluded that Donald’s will and codicil, when read together, provide for the vesting of one-half of the residue of Donald’s estate in Barry when Donald died.