James Steele, Robertson Stromberg LLP
An interesting recent estate litigation decision from Saskatchewan comes in Leason v Malcolm, 2020 SKQB 102.
Leason reminds us that once a bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the beneficiary’s estate will still be entitled to receive the share.
In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.
Facts in Leason
Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect on the date of his death, September 9, 2018, when Jennie was still alive. However, the bequest in Mr. Aronetz’s will, however, was unusually worded. It read as follows in paragraph 2:
The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive. The executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.
The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.
The executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.
The Decision of the Court
The Court interpreted clause 2 above as providing for:
The Court then turned to consider whether this testamentary intention should be enforced?
The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested:
 I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.
 The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable.
As such, the Court held that the estate of Jennie Leason was entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.
As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).
James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc.