Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982.

The application was made  under section 155 of the Wills, Estates Succession Act, S.B.C. 2009, c.13, (the “Act“) and Rules 8 — 1, 14 — 1, and 22-1 of the Supreme Court Civil Rules for the payment of an interim distribution.

The remaining litigants were refused the same advance primarily as they had not applied and were left to continue their litigation over the remaining $2,250,000. in the estate. They had opposed the interim advance unless the court awarded them the same but the court stated since they had not applied, the court could not review their application in light of the required law as set out in the Hecht case below.

Discussion of the Legal Principle to be Applied

31      In Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (C.A.) at paras. 42- 46 the Court of Appeal set out a number of the factors the court was to consider when deciding whether to exercise its discretion to grant leave to the executors to make an interim distribution when Wills Variation Act proceedings have been commenced. The Wills Variation Act, R.S.B.C. 1996, c. 490, was repealed and replaced by the Act under which proceedings have been commenced by Leslie. Those factors included:
a. the amount of the benefits sought to be distributed as compared to the value of the estate;
b. the claim of the beneficiaries on the testator;
c. the need of beneficiaries for money; and
d. the consent of the residuary beneficiary to the proposed transfer.
See also Henney v. Sander, 2014 BCSC 889 at para. 38.

Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact.

In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of the court in such claims is statutory, not founded in equity and the entire jurisdiction of the court is discretionary.

Within reason the court can make findings of fact in its discretion which makes it very difficult to appeal since the appeal court would have to substitute its own findings of fact in place of the trial judge unless the appeal court finds that the trial judge did not give sufficient weight to relevant factors.

The BC Appeal court in Kish v Sobchak and Doyle 2016 BCCA 65 stated the following about the courts proper use of discretion:

33.   The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches(2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case.

He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this way and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them. On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

S 151 WESA – Court Allows Applicant to Sue as Executor

S 151 WESA - Court Allows Applicant to Sue as Executor

Werner v. McLean 2016 BCSC 1510 granted relief under S 151 WESA that the applicant be authorized to bring court action in the name of and sue on behalf of the personal representative of the estate as executor.

The court approval was in order to litigate whether an asset was or was not an estate asset. The court found that the applicant had satisfied the required criteria under S 151 WESA.

An application in the alternative that the executor be removed and the applicant substituted as executor  was dismissed on the basis that the executor had not acted improperly.

The court stated:

[9]             On an application for removal of a trustee, the court’s focus is on the welfare of the beneficiaries of the trust estate: Letterstedt v. Broers (1884), 9 App. Cas. 371 (P.C.); Conroy v. Stokes, [1952] B.C.J. No. 111 (C.A.). Not every act of misconduct should result in removal. The question is whether the acts or omissions endanger the trust property or show a want of honesty or proper capacity to execute the duties or reasonable fidelity: Letterstedt, at 386.

Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:
(1)  Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person
(a)  to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b)  to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(3)  The court may grant leave under this section if
(a)  the court determines the beneficiary or intestate successor seeking leave
(i)   has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii)   has given notice of the application for leave to
(A)  the personal representative,
(B)  any other beneficiaries or intestate successors, and
(C)  any additional person the court directs that notice is to be given, and
(iii)   is acting in good faith, and
(b)  it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.
(4)  On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

Adoption Purposes

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim against the estate of his natural father (“birth parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”.

Section 3 WESA re Adoption states:

Effect of adoption

3  (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

In other words on an intestacy an adopted child may not inherit from his or her birth parent and a birth parent may not inherit from a child that has been adopted , with the exception of step-parent adoptions.

Nothing however prevents the right of both children and parents to leave a gift by will to each other irrespective of the adoption.

This section also precludes a child who has been adopted out from bringing a wills variation claim ( S 60 WESA) against the birth parent’s estate.

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability pension due to his mental illness.

The estate was approximately $500,000 and was left solely to the sister of the deceased.

The disabled son succeeded in his wills variation claim ( now section 60, WESA)  with the court finding that state paid disability benefits are the bare minimum and that a parent still has a moral obligation to provide more for the child’s benefit.

THE COURT STATED:

73      Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some “extras” for the disabled person. Thus arise the exemptions in the Disability Benefits Program Act and the Regulations to that Act.

74      I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Act will cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother’s death and the other factors the court is required to consider when dealing with Wills Variation Act actions, including the size of the estate.

75      I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott’s effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.

76      In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott’s death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.

77      The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.

78      The additional lump sum payment shall fall rateably on the estate. Mr. Onwood’s share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation’s share of the estate shall be satisfied, following which the Society shall receive its share.

Will Variation: Daughter Awarded Entire Estate

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well off but left the entire estate under her will.

The court found that the husband beneficiary of the estate had was financially independent and had limited legal or moral entitlement to the estate.

The daughter in turn had great financial need.

The Court Stated:

The leading Canadian decision on variation principles is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807; 93 B.C.L.R. (2d) 145. In delivering the Court’s unanimous judgment, McLachlin J., as she then was, confirmed that the language of the WVA confers on the trial court a broad discretion to make orders that are just in the specific circumstances of a case, and in light of contemporary standards. The WVA is to be seen as imposing limitations of testamentary authority. At a minimum, survivors are not to be left destitute, such that they will impose a burden on the state; but what is to be considered “adequate, just and equitable” is not limited to need alone.

Entire estate

[20]         Tataryn further discusses the means by which competing claims are to be assessed:

How are conflicting claims to be balanced against each other?  Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[21]         In my judgment, the needs of the plaintiff, in relation to the very modest size of the estate, completely outweigh all claims of Mr. Martens. Mr. Martens, though he was no doubt the loving spouse of the deceased, had only a short relationship and demonstrates no financial dependence upon her during their lifetime. The amount of the structured settlement fund did not increase in value during their relationship. He has no claims founded in unjust enrichments. In the circumstances, he would not have been entitled to spousal support on the breakup of their marriage. His legal and moral entitlement to a share in Michelle’s estate is consequently limited, at best. Furthermore, the size of the estate is so modest that in their entirety, the structured settlement proceeds would appear to be sufficient only just to lift the plaintiff and her two dependent children out of poverty, and then only for so long as the fund lasts.

[22]         In the present case it does little violence to the testator’s intentions to make an immediate full reapportionment in the plaintiff’s favour. It is a fair inference, from the evidence, that the testator’s decision to leave to Mr. Martens’ discretion the amount of support to be paid to the plaintiff, when the will was made in 2012, may have reflected some hesitation as to the plaintiff’s ability to exercise good judgment. Whatever qualms may have led the testator to structure her will in this fashion, as opposed to leaving an outright gift to the plaintiff, there is no evidence now which points to any such concern. Indeed, the mechanism of the structured settlement itself would serve as a check on the funds being squandered. The plaintiff appears, on the evidence, to have survived a difficult adolescence and now to be doing her utmost to see to the need of her children, in very challenging circumstances.

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation

Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA.

The Grant and Hecht cases are only a few reported cases of the ability to apply to court for an interim distribution of funds where appropriate provided there is no risk to the ultimate redistribution of the estate  should the will be varied.

The Judge in the Grant case  stated:

In Hecht v. Reid et al, 39 E.T.R. 165, Justice Donald as he then was, reviewed this section, came to the conclusion that a partial legacy under a Will can be paid notwithstanding a pending claim for variation when the risk that the Variation Order will encroach upon the funds needed to satisfy the legacy is remote.

13      In my view, the jurisdictional question has been settled by this court.
14      The only issue for determination is whether the proposed payments to Nancy Grant pose a risk to the ultimate distribution in the event
there is a variation to the Will.

Public Policy Protects Wills Variation Claims

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in wills variation actions.

Wills variation claims are now found at section 60 of WESA.

Bellinger v. Fayers, Nuytten  2003  BCSC  563 reviewed the law relating to forfeiture clauses including how they relate to wills variation claims.

The deceased’s will contained the following forfeiture provision: 

          “7.      IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

Kent v. McKay (1982), 139 D.L.R. (3d) 318 (B.C.S.C. )

held the forfeiture clause void in so far as it purported to limit claims the Wills Variation Act.

He found the condition contrary to public policy because it attempted to penalize the legatee for bringing a successful action provided by statute

In reaching this decision Justice Lander relied on the Australian case Re Gaynor,(1960) V.R. 640 (S.C.), He then found as follows:

“It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act, is to ensure adequate maintenance and support for specified individuals.  It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the Wills Variation Act by the creation of such as para. 9.”

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA.

This decision was upheld on appeal- see Hadley Estate 2017 BCCA 311.

The administrator of her estate brought an application under section 58 of  the wills estates succession act, WESA  for determination. If the September 2014 journal entry was a will or  was a 2008 will the last valid will .

After reviewing several factors both pro con, the court found that the following rambling  journal entry was not a valid will:

[p. 1]
Sept. 1, 2014 Monday Tonight @ 8.30 pm I believe I had a something [?] to me. I am confused now. 9 pm. At 6 pm I went to English Bay & watched the sunset – talked to the life guard – at 8 pm I walked home – used my walker. I pushed my walker along Davie St to the Cardero Mini park in front of our our [sic] building – Seacrest Apt. Sat on my walker – At 8 pm I went inside “Seacrest – parked my walker inside the locker room & went up the stairs to my suite [ . . . ] Suddenly I had huge flashes in both my eyes – Zig Zag flashes like a up & down like a chart. – I could not could not see – the flashes were very bright – very strong – I tried to see I had no-one to phone Ginger phoned me – All was well – My niece lives in Windsor Ontario Mrs. Virginia Maziak-[phone no. omitted] I am somewhat dizzy now I had a terrible experience / frightening experience / flashes now. I ate a chocolate bar – [ ? ] glass peach cider – walked up & down my suite – scary. I hoped this would help me [ ? ]. [Suite no. ] Bullies me every day.
[p. 2]
Continued
September 1, 2014.. Monday.
This is my last Will.
Because of the daily harassment by [individuals at Seacrest]. I have been unable to [?] my personal needs – thus I put off seeing a lawyer to sue them & Seacrest Company Shareholders & to change my will. As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company – self owned to the following people who were kind to me (1) My niece Virginia Maziak who live lives in Windsor Ontario @ [address omitted]. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald — [phone no. omitted] Because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce [phone no. omitted] a young Film Producer who worked so hard and was kind to me. It is not common knowledge that I am an orphan as a child. I have no heirs. My husband John Donald Hadley died and so did my only child – Karen Margaret Hadley. I struggled all my life to work and save some money to be independent. I have no debts. I have some bills to pay now – Seacrest Co. Apartment 1947 must pay for repairs, windows, ceiling walls, etc.
[p. 3]
Continued Eleanor Lena Hadley (Sanchuk) born Sept. 15, 1921
I hope to see Mr. David Ebby in person to write this will. I just had a scare – that prompted me to hastily [?] write this will. Many people have helped me. However [illegible] for personal reasons they are not included in my will.
Also, I do have some old penny stocks that faded away and in my box (deposit) Royal Bank corner of West Georgia & Burrard Streets where my previous will is.
I live in Seacrest Apts. ltd at the present time. Since 1997 I have been bullied & harassed & denied my entitlements by [individuals named]. They should be sued for destroying 17 years of my life. So that I am living in fear to this day. I could not sell my suite because [individual named] in 1997 put an a unhealthy dryer vent for the whole building (Seacrest) under my kitchen windows
11.20A.M. EH
[p. 4]
My will Continued:
Re: If Mr. David Ebby is willing I would like him to sue all the Seacrest Shareholders named in this will for criminally destroying my life since 1997 when [individual named] unlawfully all the Seacrest Co 20 Shareholders Basic Rate a/os [?] 1947 Original Agreement – I have the original Memorandum. Because of ill health due to daily harassment by those named in my will I was and am presently too ill physically to go to court. I tried this [?] in the Small Court. At that time Judge Gee Gee said – that I was in the wrong Court. I do not have the original Court Trial documents (only the edited document which omits my complaints entirely. Why Judge Gee did this is a puzzle to me. Also my lawyer [individual and firm named] failed to present my case. Because of the daily harassment by [individuals named] to this day I was & am unable to bring my case to trial again. These 3 people / shareholders / Seacrest have also used the computer to [illegible] my name and [illegible] a fake document.

THE  LAW

The curative provisions of section 58 conferred discretion on the court to relieve against the consequences of noncompliance  with the  testamentary formalities  in a “record, document or writing or marking on a will or document”.
In prescribed the circumstances, section 58 permits the court to address and your issues of formal invalidity  in such documents .
The leading case In British Columbia is Estate of young  2015 BC SC 182 .
Young followed the law  of Manitoba in their leading case of George v.  Daily (  1997)  143 DLR (4th) 273  ( Man. CA), which stated :
51      Because of the similarity between s. 58 and the curative provision in Manitoba’s Wills Act, C.C.S.M., c. W-150, in Young, Dickson J. (as she then was) reviewed a number of Manitoba authorities, including the leading case of George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). She then wrote by way of summary (at paras. 34-37) [underlining added]:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: [citations omitted].
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
52      Extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: see Yaremkewich Estate (Re), 2015 BCSC 1124, at paras. 31-32. Watchuk J. observed further (after reviewing Young and George), at para. 37:

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift.

Instead of  wording the will’s bequest of  “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making,  but long sold before death.

The gift of real property  in that situation has lapsed simply because it ceased to exist.

Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.

The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.

Very often the beneficiary predeceases  the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ”  establishes a default scheme for determining alternative beneficiaries of a lapsed gift.

The Default Scheme of Section 46 WESA (Replacing  and altering the previous S. 29 Wills Act)

Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary  intention stated in the will.

If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.

If there was no alternative beneficiary of the gift , and the named beneficiary is  either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.

If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in  proportion to their named interests in the will.

When gifts cannot take effect

46 (I) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(c)  to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (I) applies whether the beneficiary’s death occurs before or after the will is made