DNA, a term we hear almost daily, is actually deoxyribonucleic acid, the hereditary material in humans and almost all other organisms. Nearly every cell in a person’s body has the same DNA. It tells a lot about us, and it is being studied across the world, for numerous purposes. But since this column isn’t scientific, enough about DNA for now.
Many Wills written in B.C. include bequests to individuals. It is very common for Wills writers (including Lawyers and Notaries) to allow for the possibility that a beneficiary may die before the Testator/Testatrix (the person making the Will). In such a situation, it is common to bequeath the particular gift to the individual’s issue.
The main reason for that is to make sure that any gift in a Will always has somewhere to go. If a Will is drafted without a clause allowing for an alternate beneficiary, the risk is that a gift left to a predeceased beneficiary may end up in several different hands, some (or none) of which would have been intended by the Will maker.
Put another way, a person making a Will should be careful in identifying who a gift should go to. An interesting case decided earlier this month illustrates.
Barnes Estate v. Barnes: Background
In this case, the deceased made her Will in 1992 and died in 2010. The Estate was modest (valued at around $220,000). In this rather litigious case, the Court had to give an opinion as to the proper distribution of the assets under the Will.
Part of that opinion was to make a declaration as to whether two “grandchildren” (I use quotation marks because their status wasn’t clear) of the Will maker are not the “issue” of the Will Maker’s son (who died before his late mother).
The word “issue” is at the centre of the case, because the definition of that word, so commonly used in Wills, was critical to the outcome.
DNA testing was done to help determine whether there was a biological connection between the deceased son and the two “grandchildren” purported to be his sons.
The Will divided the Estate equally between the Will maker’s two sons. And if any son predeceased, their share was to go to that deceased son’s own “issue.” If a son had no “issue,” his half-share would, pursuant to the Will, go to the other son or the other son’s “issue” (if that other son also predeceased, which happened in this case).
The question, briefly, is whether the word “issue” really means “children.” The applicant tried to argue that, because the DNA testing done did not conclude a biological connection between the deceased son of the Will maker and his own “son,” the son is not an “issue” of the deceased Will maker’s son (and so does not get the half-share of the Will maker’s deceased son).
It appeared that the Court was not willing to give paternity the same emphasis that the parties did in determining whether the two grandsons of the Will maker were entitled to a share of the Estate.
The Court first examined the old “armchair rule” in attempting to interpret the Will, and stated that the Court must ascertain the intent of the Will maker as expressed in the Will. And, the Will is to be read as a whole.
The Court is also permitted to consider evidence to identify the circumstances of the Will maker, which might influence the Will maker in his or her choice of distribution.
The Court then considered the meaning of the word “issue,” and considered various scholastic definitions. The Court seemed to settle on the word as “including all lineal descendants of the Will maker.”
However, the Court held that this did not conclusively define the word “issue.” The Court emphasized that it had to determine what the Will maker intended by her words in the Will, and so the simple dictionary definition of the word “issue” did not end the matter!
The Court ultimately found that the meaning of “issue” is not clear and unequivocal. It was not prepared to hold that “issue” refers only to blood descendants. Thus, the Court sought to interpret the word in the context of the Will of the late Will maker.
The parties did agree, in this case, that the Will maker’s son held out and treated his two sons as if they were his biological sons. The Court held that the Will maker knew well of her two grandsons, and likely believed they were her grandsons. Therefore, she intended that they would inherit if their father predeceased (which he did).
There were also some doubts with respect to the DNA evidence, which further clouded the matter of the biological connection, but that had become a non-factor by this point in the case. The Court held that the two grandsons of the Will maker would take the half-share intended for their father.
This important case somewhat clarifies the definition of the word “issue.” It also suggests that if a person making a Will wants to benefit a certain person or group of people (such as a grandchildren), it would be preferable and clearer to simply identify the beneficiaries as “grandchildren” rather than “issue.” The word “issue” probably connotes a broader group of people than “children.”
So the use of such wording, as you can see, is important in a Will.
The case is also important for clarifying the method by which a Court can interpret a Will. To me, it indicates that the more carefully a Will is worded, the easier a Court can determine what the Will maker intended to do with his or her Estate. So give a lot of thought to the words in your Will!
This column ran in the Richmond News on October 25, 2013.