Mainville, Rancourt, Fournier
Appeal from a judgment of the Superior Court allowing an application for declaratory judgment. Dismissed.
In 1994, Glickman signed a notarized will by which she bequeathed all of her property to her husband or, should her husband predecease her, in equal shares to their three children, Jane, Lucy, and Richard. The will also provides that, should any of the children predecease their mother before receiving their full share of the capital, that share accrues to her other children if the deceased child leaves no living child. Glickman died in 2013, and her husband had died in 2006. In 2013 and 2015, the children received partial distributions, but one of them, Richard, who had no children, died before the final distribution was effected. His estate devolved to various friends and relatives who were not members of the family. The appellant, liquidator of Richard’s estate, and the respondents, liquidators and beneficiaries of Glickman’s succession, do not agree on the effects of Richard’s death before the final distribution of the capital. They asked the Court to decide whether the final distribution of the remainder of Glickman’s succession should be divided equally between her two remaining surviving children, Lucy and Jane, or, rather, if the estate of the late Richard is entitled to participate in the final distribution. The trial judge concluded that the will was ambiguous and required interpretation. According to her, contrary to Warhaft c. Warhaft (Succession de), (Sup. Ct., 2002-11-13), SOQUIJ AZ-50151266, J.E. 2003-104, the Testator did not intend that the transmission of her estate to her children be an unfettered and absolute transmission, but rather that it be held in trust by its liquidators for their benefit. She did not want non-family members inheriting any portion of her property that a childless beneficiary did not receive during his or her lifetime.
The terms of the will are clear and do not need interpretation. The Testator’s intent is evident: should any of her children die with no living issue before receiving their full share of her succession, then that share accrues to her other surviving children. The bequest to Richard is thus subject to that condition. Similar to the clause providing for devolution to the children should the husband predecease her, it is a suspensive condition of a purely personal nature which entails the lapse of the legacy should the condition be fulfilled. This clause is not impossible nor contrary to public order. It must be enforced by the liquidators of the succession while they exercise the seisin, irrespective of whether or not a trust was created.
Text of the decision: Http://citoyens.soquij.qc.ca