Drafting a Will is not a job for a layman, an online program or even a generalist lawyer who dabbles in drafting Wills. One of the examples of the need for a someone who only practices as a Wills Estate and Powers of Attorney lawyer, is the effect of The Successional Reform Act, section 31 misleadingly titled “substitutional gifts”. Experienced Will and Estate lawyers refer to this section as the anti-lapse provision. If a Will leaves a gift to a child, grandchild or sibling ( which we will call the predeceased relative) who happens to die before the Willmaker, Section 31 applies. Unless there is a contrary intention in the Will, which we will elaborate upon shortly, the gift to the predeceased relative does not lapse or evaporate, but rather that gift would be divided equally amongst the predeceased relative’s spouse and children equally. So if the Will does not answer, a question that should always be asked your Wills and Probate Lawyers, what do you want to happen if a predeceased relative dies before you, then instead of the gift lapsing aka evaporating and simply going into the residue pot, it could very easily be paid to predeceased’ s wife or children.
This section is often overlooked, but it is a real landmine and it takes the hand of an experienced Wills and Probate lawyers to deal with. This is something that one who regularly drafts Wills and Powers of Attorney understands and keeps in mind. Failing to appreciate the significance of this section can lead to very expensive estate litigation, triggering the need for Estate Litigation lawyers, and potentially a negligence action against the lawyer who drafted the Will.
We spoke earlier about the contrary intention appearing in the Will and this was discussed in the 2024 ON SC6764 case of Devenport v. Devenport. The court looked at the four corners of the Will and found no such contrary intention. However, the court did indicate that it was possible to consider extrinsic evidence of intention, although this was stated with great caution.
Examples of a contrary intention would include a general statement that Section 31 does not apply to any gift in the Will, or a condition that a beneficiary must be alive at the time of the willmaker’s death, or if that beneficiary had predeceased that gift would then go to a specific individual or the gift would lapse and then form part of the residue. It is not important that you understand how to effect a contrary intention, but what is important that you appreciate that you need an experienced Wills and Probate lawyers to draft your Will.
