S. 86 Trustee Act Directions After a Murder

S. 86 Trustee Act Directions After a Murder | Disinherited

Re Unger 2022 BCSC 189 involved an application by the executors of the estate for advice and direction as authorized by Section 86 of the Trustee act regarding the disposition of the deceased’s estate, given that her own son had murdered her, the issue became who was entitled to his share of the estate.

The deceased was survived by two sons, Clayton and Logan, who were each 50% beneficiaries of her will.
As Clayton murdered his mother, all parties agreed there is a rule of public policy which excludes the person responsible for another person’s death from taking any benefit because of their criminal act.

The rule was discussed at length in the Supreme Court of Canada decision Oldfield v . Transamerica Life Insurance Co of Canada , 2002 SCC 22 at paragraphs 14 – 15.

Prior to his mother’s death, Clayton was found to have conceived a child ( Adeline) who was born approximately 11 days after his mother’s death. His mother knew of the child and the court found that the child was “en ventre sa mere” and could inherit.

The court was asked to determine who should inherit what was to be Clayton’s portion of his mother’s estate: his daughter, his brother Logan, or two charities named as alternate beneficiaries under the will. The value of the estate was approximately $860,000. The court found that the paramount concern was the intent of the testator at the time the will was executed.

Relevant Legislation to the Trustee Act

This application is authorized by s. 86(1) of the Trustee Act, which states:

86(1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court, or by summons on a written statement to a Supreme Court judge in chambers, for the opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of a testator or intestate.

Section 46 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] is foremost for consideration in this case:

46(1) 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 (1) applies whether the beneficiary’s death occurs before or after the will is made.

The Public Guarian on behalf of Adeline provided the Court with two authorities to support its position, being Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218 and Dhaliwall v. Dhaliwall, [1986] B.C.J. No. 1463 (S.C.).In both cases, the testator was murdered by a named family beneficiary and intended, if the named beneficiary was not to receive the estate, for the estate to pass to the alternate beneficiaries. In Jollimore, to the Nova Scotia Public Archives, and in Dhaliwall, to the deceased’s children.

“The court should do its best to see, in a matter of this kind, that the obvious  intentions of a testator are not defeated. The proposition that there should be an intestacy because the will uses the words, “if X survives” and X did survive, results not only in the testator suffering the indignity of murder but also the affront of the defeat of his obvious testamentary intention. If the gift is a residuary gift and there is a gift over, less violence is done to the testator’s intentions if the court holds that a person barred by the rule of public policy is deemed to have died immediately before the testator than by any other possible solution to this problem. ”


The portion of the residue of Ms. Unger’s estate is to pass to Adeline for the following reasons:

a) Under the rule of public policy, Clayton was not entitled to what would have been his portion of Ms. Unger’s estate, Ms. Unger having died as a result of Clayton’s actions.

b) The clear intent in the Will was that should either of Ms. Unger’s children predecease her, under para. 7(b)(ii) of the Will, any children of her children who are alive at her death or are en ventre sa mere should receive the deceased child’s share.

c) Adeline was an “alternate beneficiary” of the gift to Clayton as contemplated by s. 46(1)(a) of the WESA, and is therefore the first priority for distribution of Clayton’s share. Logan was not an alternate beneficiary of Clayton. He was a primary beneficiary of the residue along with Clayton and had no claim against Clayton’s share.

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