Conundrums facing Estate Trustees in Murder-Suicide Cases
PART TWO
III. How does the Court decide Who Inherits? The 3 Will Interpretation Approaches
The question of how the Court will determine who inherits, was canvassed fairly recently, in 2021, by the Superior Court of Ontario in The Bank of Nova Scotia Trust Company v Rogers. In this case, a son pled guilty and was convicted of the murders of both his parents. He was sentenced to two life sentences without the possibility of parole for 20 years. The parents’ wills stated that their son should inherit, or his issue, and failing that, the mother’s three brothers. As the son had no issue at the time, the question was whether the estate should remain invested until the son died to ascertain whether he would have any children.
As in all will interpretation cases, the overall objective is to see that the wishes of the deceased are carried out. The Court reviewed three different approaches that have been taken over the years:
1) the deemed death of the criminal;
2) the literal reading of the will; and
3) the implied intention.
The “deemed death” approach assumes the criminal has died before the victim. The second approach applies the will in a manner that excludes all entitlement by the criminal – this could lead to an intestacy of the victim, as was the case in Dreger. The third approach attempts to ascertain the testator’s intentions, which can lead to proceeds going to alternative beneficiaries named in the will.
Generally speaking, courts will seek to avoid an interpretation of a will that will result in intestacy, unless there are exceptional and compelling reasons to do so. The court’s task is to determine the testator’s intentions as to disposition of their property upon death.
In BNS v Rogers, a literal reading of the wills would have resulted in an intestacy, which the court held was not consistent with the testators’ intentions. While the practical result of the “deemed death” and “implied intentions” approaches in this case would have been the same, the Court preferred the “implied intentions” approach. The concept of acceleration of gifts provided the Court with the basis to move past any contingent beneficiaries.
The Court held that waiting to determine whether the son had children was not appropriate and would not be in keeping with the testators’ intentions in the circumstances, was contrary to the intention gleaned from the language in the wills, and would offend the rationale for the public policy.
a) What about the Murderer’s Next of Kin?
In terms of next-of-kin, the principle is that they may not inherit via the murderer – there is no distinction between the criminal and his estate, as the estate’s claim is equivalent to a claim brought by the criminal.
However, an intestacy or an entitlement under the will of the victim, establish a different and legitimate pathway to their inheritance.
In Oldfield, the ex-wife of the criminal was able to claim under his life insurance policy, not as his successor, but as an ordinary beneficiary. The Court held that innocent beneficiaries may inherit even if related to the criminal, as long as they have standing to do so without claiming through the criminal’s estate.
[There is a line of cases dealing only with insurance policies; it would be prudent to review those where questions about beneficiaries of life insurance are involved.]
The facts of each case seem to sway courts to make a “just” determination.
For instance, in Dhaliwall v Dhaliwall, the husband killed his wife. The wife’s will left everything to the husband with a gift-over to their children should he not survive her. The Court determined that although the “deemed death” approach would result in an intestacy, meaning residue would pass to the children in any event, and the “implied intention” approach led to the same result, that, in such circumstances, the deceased’s obvious intentions should not be thwarted and further indignity of the testator should be avoided.
However, in Jollimore Estate, a devoted son killed his mother, who was suffering from Parkinson’s disease, then killed himself. The mother’s will left all to her son, and in the alternative, to the provincial archives. The son was deemed to have died second. The Court found that the son was not of unsound mind, and as such, none of his relative could claim under him pursuant to an intestacy. The Court preferred to honour the mother’s alternate residuary beneficiaries, and ordered her estate to go to the archives.
IV. Quirks: Joint Tenancies and Mirror Wills and the application of the Slayer Rule
Re Dreger addresses mirror wills in a murder-suicide situation. In that case, the husband killed the wife. Their wills named each other as estate trustee for the other, and both wills stated that should the other predecease, or if they should “die at the same time,” gifts were to be made to various beneficiaries, with each gift in each will being exactly the same, and the residue to be paid to alternate beneficiaries.
The murderer-husband was determined to have died after the victim-wife, and the Court did not find that it had to determine the meaning of “die at the same time,” but noted that there could, if the facts had been different, have been some difficulty with this phrase. In this case, the events as dictated in the dispository clause – that should the husband predecease her, or die at the same time, the alternate provisions would govern – did not transpire. Accordingly there was a failure of gift resulting in an intestacy of the wife’s estate. Thus, the wife’s estate would be paid to her beneficiaries on an intestacy pursuant to statute and there was no double payment of any legacies.
With respect to joint ownership, the Court held that the murderer-husband’s estate trustee became a constructive trustee of the entire property, holding an undivided one-half interest for his estate, and the other half for the victim-wife’s estate. Although he committed a heinous, criminal act, it did not disentitle him to his own property interests. The
Take – Away: It can be very complex to untangle two estates in a murder-suicide situation. Even where it seems fairly straightforward, the executors should at the very least obtain the fully informed consent of all potential beneficiaries prior to distributing the estate. Executors would be best protected by bringing an application to Court for directions, which they are entitled to do under statute. Obtaining clear Court orders would be a comfort to any trustee in such a situation.