/ Case Law

Case Brief: Disinheriting your only living heir

In Re Vaudrey, 2019 ONSC 7551, the Superior Court of Justice considered a case where a deceased individual's only living heir was expressly disinherited by the will.

The Facts

William Vaudrey ("William") died in September 2018. His estate was valued at approximately $95,000 and was handled by PGT.

During his life, William married Ethel and the couple adopted two children, Sheila and Kristin. William and Ethel separated, after which William's relationship with Kristin deteriorated and the two became estranged. Ethel pre-deceased William in 2007. Sheila then pre-deceased William in 2013, with no children and having never married.

After William's death, Kristin presented the court with a will purportedly made by William in 2005. The will states that Sheila is to be estate trustee and receive the residue of William's estate, and if Sheila has pre-deceased William, then Ethel is to be estate trustee and get the residue.

Importantly, the will made no provision for what would happen if both Sheila and Ethel pre-deceased William. The will did, however, state that Kristin should receive nothing:

I state unequivocally that under no circumstances is any part of my estate to be transferred to my estranged daughter, Kristin P. Vaudrey, or to any of her descendants
At para 8

Kristin applied to the court for:

  1. A declaration that the 2005 will is valid
  2. An order appointing her Estate Trustee with a Will
  3. A finding that the Will results in an intestacy and a declaration that Kristin is therefore the heir-at-law of the Residue

Issues and Analysis

Madam Justice Sylvia Corthorn considered the three issues in the case.

1. Is the will valid?

Yes.

While it appeared that the will had not been drafted by the lawyer, it also appeared to have been signed by William and two witnesses, Sheila and someone named L.M. McElligott. Kristin gave evidence that she recognized both William and Sheila's signatures.

While there were no affidavits of execution from Sheila or L.M. McElligott, there was no evidence suggesting that the witnessing or signatures were invalid. So the will was validly executed, satisfying section 4(1) of the Succession Law Reform Act ("SLRA"):

Subject to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

The fact that Sheila was a witness and a beneficiary means that the will's bequest of the residue to her is void. But this does not invalidate the will itself.

And while William was free to exclude Kristin, this provision is only valid if the will specifies a surviving individual to receive the residue (see R. v Snider (1974), 3 OR (2d) 541 HCJ). With Sheila and Ethel having pre-deceased William, the SLRA rules apply.

2. Should Kristin be appointed Estate Trustee with a Will?

Yes. Kristin is the only surviving child of William. There was no evidence that William had any other family and there was no one else seeking to be estate trustee.

3. Do the terms of the will result in an intestacy? If yes, who is the heir-at-law?

Since Sheila and Ethel both pre-deceased William, the terms of the will result in an intestacy. Following the SLRA rules, Kristin - as William's daughter - is the only living heir available to receive the residue. She is the heir-at-law of the residue.

While William had attempted to disinherit Kristin, this provision cannot prevent the SLRA rules from applying or alter their application in the event that the will names no living person to receive the residue.

Bottom Line

A testator is free to exclude someone from being a beneficiary of their estate. But if the will does not provide for a surviving person to receive the residue, the SLRA regime applies and trumps the exclusion provision.