Case information

Wills and estates — Wills — Residue of estate — Distribution of assets — Dispute between beneficiaries as to interpretation of residue clause in testator’s will — Application judge rejecting applicant’s interpretation and finding that testator intended for children to share equally in 40% of residue of estate, and grandchildren and great grandchildren to share equally in 60% of residue of estate — Court of Appeal upholding application judge’s conclusion — Whether courts are obliged, in interpreting testamentary documents, to interpret them in the context of the surrounding circumstances in all cases, or only where the plain language of the will is ambiguous?

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After the death of Saul Jonas, a dispute arose between some of the beneficiaries — the applicant, Saul’s daughter Miriam Young; and other family members who acted as Estate Trustees (Saul’s other daughters Naomi Jonas and Deborah Jonas; and his common-law spouse and mother to the children, Mary Ann West) — concerning the interpretation of a residue clause in his will. The clause purported to divide the residue of Saul’s estate as follows: 40% of the residue of the estate “to be divided equally among my children who shall survive me”, and 60% of the residue of the estate “to be divided equally between my grandchildren and my great grandchildren (if any) who shall survive me or be born within ten years of my decease, in equal shares per stirpes”. The Estate Trustees brought an application seeking judicial advice and direction on the interpretation of the residue clause. The respondent the Office of the Children’s Lawyer (“OCL”) represented the interests of Saul’s grandchildren and any unborn and unascertained beneficiaries to the estate.

The application judge rejected Miriam’s interpretation (who had argued that all of the residue, including the 60% portion, should be divided equally among the children class of beneficiaries; and any grandchildren alive on the vesting date would receive an equal share only of their parent’s share of the 60% portion), and preferred that of the OCL: i.e., the 40% portion of the residue should be divided equally among the children, and the 60% portion of the residue should be divided equally among all grandchildren alive on the date of death and any grandchildren or great grandchildren born by the vesting date. The Court of Appeal unanimously upheld this conclusion.
After the death of Saul Jonas, a dispute arose between some of the beneficiaries — the applicant, Saul’s daughter Miriam Young; and other family members who acted as Estate Trustees (Saul’s other daughters Naomi Jonas and Deborah Jonas; and his common-law spouse and mother to the children, Mary Ann West) — concerning the interpretation of a residue clause in his will. The clause purported to divide the residue of Saul’s estate as follows: 40% of the residue of the estate “to be divided equally among my children who shall survive me”, and 60% of the residue of the estate “to be divided equally between my grandchildren and my great grandchildren (if any) who shall survive me or be born within ten years of my decease, in equal shares per stirpes”. The Estate Trustees brought an application seeking judicial advice and direction on the interpretation of the residue clause. The respondent the Office of the Children’s Lawyer (“OCL”) represented the interests of Saul’s grandchildren and any unborn and unascertained beneficiaries to the estate.

The application judge rejected Miriam’s interpretation (who had argued that all of the residue, including the 60% portion, should be divided equally among the children class of beneficiaries; and any grandchildren alive on the vesting date would receive an equal share only of their parent’s share of the 60% portion), and preferred that of the OCL: i.e., the 40% portion of the residue should be divided equally among the children, and the 60% portion of the residue should be divided equally among all grandchildren alive on the date of death and any grandchildren or great grandchildren born by the vesting date. The Court of Appeal unanimously upheld this conclusion.