Children Born After Death of the Testator

Children Born After Death of the Testator

I recalled learning “en ventre sa mere” in law school and recently had occasion to advise as to whether a great grandchild born after the death of the grandfather testator, would inherit as part of the class of great grandchildren, as the child is a fetus and will be born about 3 months after the death of the grandfather.

When a will states that an estate shall vest to “all great grandchildren or grandchildren living or alive at the time of the death of the testator”, that estate has been held to vest in a share of any fetus alive in the abdomen of the testator’s daughter, daughter-in-law or sister-in-law as the will may provide who is born alive and under WESA survives five days or more.

The common law has developed the concept of “ en ventre sa mere” as far back as 1795.

In Doe v Clarke 126 ER 617 (1765) the court considered a situation where the will left an equal inheritance to such child or children and should be living at the time of my decease, and held that a child that was born seven months after the death of the testator, and thus was en ventre sa mere, comes clearly within the description of children living at the time of my decease.

En ventre sa mere is known as a long-standing legal principle of fundamental importance, as was noted in the leading case Montréal Tramways Company v Leveille 1933 SCR 456 SCC ,that noted that the concept dated back to Roman times, and remains entrenched in civil law codes around the world to this day. It was acknowledged the principle of general application in the common law of England at least by 1748.

A more recent case in 1937 In re Sloan estate (1937) 3 WWR 455 stated that in construing a will by a parent, credit him or her with those feelings which we commonly believe should be the attribute of a parent, and endeavor to construe the will as if he or she were a just and fond parent. ( I submit grandparent would also apply)

The court followed Villar v Gilbey (1907 ) AC 139 stated the following principles re will construction and children born after death:

1) Words referring to children or issue born before, or living at or, as I think we must add, surviving a particular point of time or event will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date;

2) the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein en ventre sa mere at the relevant date and subsequently born alive if, but only if, such fictional construction will secure to such child, a benefit to which it would have been entitled if it had actually been born at the relevant date;

3) the only reason and the only justification for applying such a fictional construction is that, where a person makes a gift to a class of children or issue described as unborn before or living at or surviving a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift.

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