Judge calls this a paradigm case of operation of s. 31 of Succession Law Reform Act
The Ontario Court of Appeal has affirmed a determination that the anti-lapse provision of s. 31 of Ontario’s Succession Law Reform Act, 1990 (SLRA) applied because the terms of a will showed no contrary intention that rendered s. 31 inapplicable.
Eleanor, the testator in this case, had a son, Peter, and a daughter, Nancy. Peter and Nancy’s grandfather owned a residential triplex on Hopewell Avenue in Ottawa. Upon his death, the property title passed to Lorne, Peter and Nancy’s father.
Peter married Catherine. The couple, who had no children, moved into the second-floor apartment of the triplex in 1976 and paid Lorne rent.
Upon Lorne’s death on July 1, 2005, the property title passed to Eleanor. Peter and Catherine began paying Eleanor rent. Upon Peter's death, Catherine remained in the apartment and continued paying rent.
Eleanor also owned a property on Apeldoorn Avenue in Ottawa. In April 2018, as Eleanor’s attorney for property, Nancy sold the Apeldoorn property for $770,000 and partly used the sale proceeds to assist in her mother’s care.
In 2019, Nancy moved into the main-floor apartment of the Hopewell property.
Eleanor passed away on July 17, 2022, leaving a will dated Oct. 15, 1997. Her will bequeathed the Hopewell property to Peter and left the Apeldoorn property to Nancy. Excluding the Hopewell property, her estate’s value was about $300,000.
On Mar. 17, 2023, as Eleanor’s sole surviving child and her estate’s only living beneficiary, Nancy obtained from the court a certificate of appointment as estate trustee with a will, as well as probate of the will.
As sole beneficiary and estate trustee of Peter’s estate, Catherine applied for an interpretation of Eleanor’s will. She alleged that the Hopewell property passed to her by operation of the anti-lapse provision in s. 31 of the SLRA.
Nancy countered that the anti-lapse provision did not apply because Eleanor expressed the contrary intention in her will. According to Nancy, with the lapsing of the gift to Peter, the Hopewell property became part of the residue of Eleanor’s estate.
Section 31 applied
On Dec. 4, 2024, in Devonport v. Devonport, 2024 ONSC 6764, the Ontario Superior Court of Justice allowed Catherine’s application. Justice Owen Rees described this as a paradigm case of the operation of the anti-lapse provision.
The application judge determined that the Hopewell property passed to Catherine through the operation of s. 31 of the SLRA, rather than lapsing into Eleanor’s estate residue. The judge ruled that Catherine owned the Hopewell property from the date of Eleanor’s death.
The judge interpreted Eleanor’s will from the time of its making. He held that the will:
- was clear and unambiguous
- intended to transfer to Peter the Hopewell property “absolutely” and transfer to Nancy the Apeldoorn property “absolutely” in clause 3(e)
- contained no contrary intention that ousted s. 31
Nancy appealed this judgment. She argued that the judge made errors by:
- finding that the anti-lapse provision of s. 31 applied, given that the will’s terms showed a contrary intention that rendered s. 31 inapplicable
- excluding the evidence of the solicitor who helped Eleanor draft her will
- requiring her to pay monthly occupation rent of $1,698 for using the main-floor apartment since her mother’s death
Decision upheld
Last Nov. 5, in Devonport v. Devonport, 2025 ONCA 753, the Court of Appeal for Ontario dismissed Nancy’s appeal.
First, the appeal court saw no error in the application judge’s conclusion that the anti-lapse provision of s. 31 of the SLRA applied.
According to the appeal court, the judge interpreted s. 31 consistently with the jurisprudence and correctly stated the principles applicable to interpreting the will’s terms and analyzing the testator’s subjective intentions.
The appeal court ruled that the judge committed no palpable and overriding error in:
- interpreting clause 3(e) in the context of the entire will
- finding no contrary intention in the will that would oust the application of the anti-lapse provision
- interpreting clause 6, which he explained would only take effect if a beneficiary separated or divorced
Second, the appeal court saw no error in the judge’s determination that the solicitor’s evidence was inadmissible. The appeal court agreed that, even if admissible, the evidence would not support the conclusion that the will expressed a contrary intention that would make the anti-lapse provision inapplicable.
Third, the appeal court ruled that the judge did not err in requiring Nancy to pay monthly occupation rent or in basing the rent for Nancy’s use of the main-floor apartment on the amount Catherine paid for the upstairs apartment, given the similarities between the two apartments.
The appeal court rejected Nancy’s argument that Catherine had no right to be heard on this issue because she failed to raise it before the judge. The appeal court pointed out that Nancy’s application explicitly sought an order for rent from the date of Eleanor’s death.
The appeal court saw an insufficient evidentiary basis to consider Nancy’s argument that she should only pay 50 percent of the rent because she maintained the Hopewell property. The appeal court noted that Nancy did not raise the reduced rent argument before the judge.
