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Exploring the Reach of the Anti-Lapse Doctrine: Does a "Special Relationship" Count?

By Hull Hull LLP

pspan style=" font-size: 12px; " /span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "The recent decision innbsp;span style="color: black; "a href="http://www.canlii.org/eliisa/highlight.do?language=enamp;searchTitle=Ontarioamp;path=/en/on/onsc/doc/2008/2008canlii59321/2008canlii59321.html"Ksianzyna Estate v. Pasutszok/anbsp;addresses whether the anti-lapse provision in thenbsp;ia href="http://www.canlii.org/on/laws/sta/s-26/20080821/whole.html"Succession Law Reform Act/a/ia href="http://www.canlii.org/on/laws/sta/s-26/20080821/whole.html"nbsp;/anbsp;can be expanded to include people in a ldquo;special relationshiprdquo; with the testator.nbsp;/span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "The Deceased had died with a will.spannbsp;nbsp;He was survived by a common law spouse, but was not married and had no children. He left the residue of his estate to his common law spouse, with the remainder being left to, amongst others, the common law spousersquo;s daughters, Donna and Laura, and Donnarsquo;s daughter, Christine (who was the deceasedrsquo;s goddaughter).nbsp;nbsp;nbsp;/span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "Donna pre-deceased the testator and an issue arose as to whether her gift then failed (as is the general rule, absent a contrary intention in the will).spannbsp;nbsp;nbsp;nbsp;/span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "a href="http://www.canlii.org/on/laws/sta/s-26/20080821/whole.html#BK32"Section 31/a of thenbsp;iSLRA/inbsp;modifies this rule by providing that where the beneficiary in question is a child, grandchild, or sibling of the testator and leaves a spouse or issue surviving the testator, the gift will not lapse but will be distributed as if the beneficiary died intestate immediately after the testator.spannbsp;nbsp;a href="http://www.canlii.org/on/laws/sta/s-26/20080821/whole.html#BK0"Section 1(1/a) defines child as including ldquo;span style="color: black; "a child conceived before and born alive after the parentrsquo;s deathrdquo;/span/span.nbsp;/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "Christinersquo;s counsel argued that the definition of child should be expanded to include persons who stood in a ldquo;special relationshiprdquo; with the testator and that given the testatorrsquo;s close relationship with Donna, the court should find that she qualified as a ldquo;childrdquo; under s. 31 and that, as such, the gift to her would not lapse but would go to Christine as her intestate heir.spannbsp;/span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "The court rejected this argument finding that there was nothing in the SLRA that provided for such an interpretation.spannbsp;/span/p p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "The court specifically considered the fact that a href="http://www.canlii.org/on/laws/sta/s-26/20080821/whole.html#BK65"Part V/a of the SLRA (dealing with dependant support) contained an extended definition of child which included those who the Deceased showed a settled intention to treat as his own.spannbsp;However, it further found that definition was constrained to Part V and could not be extended to other sections of the act.nbsp;/span/p pAs a result, the court found that the gift to Donna lapsed.spannbsp;/spannbsp;/p pnbsp;/p pHave a great day!/p pMegan F. Connollynbsp;/pimg src="http://feeds.feedburner.com/~r/TorontoEstateLawBlog/~4/487339933" height="1" width="1"/

Full post as published by Toronto Estate Law Blog on December 17, 2008 (boomark / email).