How is a testatrix's estate divided between her surviving children?

Alberta, Canada


The following excerpt is from DS v GFH, 1985 ABCA 144 (CanLII):

In an Australian case, The Public Trustee v. Freeman; In Re Lathbridge [1958] V.R. 366, the testatrix by her will provided: "'I give devise and bequeath unto my husband….all my real and personal estate or in the event of his death prior to mine: to be divided between my surviving children equally'. The husband and all children except one predeceased the testatrix." Lowe J. said at page 367: "Uninstructed by authority I should not have thought that when a testatrix made a gift to 'my surviving children', there was any real doubt as to what she intended. The testatrix knows, when she makes her will, what children she has, but she does not know and cannot know whether any and if so which of them will be living at her death. She is making plain that if all are living all will share in the gift: if one or more are not living that one or more will not share and if there is only one survivor that one only is to take." In that case it was presumed that "surviving" referred to the death of the testatrix and not to the execution of the will.

In Horton v. Horton (1978) 2 E.T.R. 293 (B.C.S.C.) the relevant facts are well set out in the headnote which I quote: "The testatrix in her will directed a division of the residue of her estate 'in three equal shares among my surviving children'. At the time the will was drawn the testatrix's three children were alive. Subsequently one of the testatrix's children predeceased her. An application for the interpretation of the will was made to determine whether the anti-lapse provisions of the Wills Act (B.C.) applied, in which case the issue of the testatrix's deceased child would share in the testatrix's estate, or whether the testatrix intended to benefit only those of her children which survived her." Andrews J. interpreted the words "surviving children" to mean 'my children who survive me' and not 'my presently surviving children.'

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