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Wednesday, November 16, 2016

My father was a beneficiary but died before the testator. Do I get his share?

Deciding who gets what under a will can sometimes be confusing. This is particularly true when a named beneficiary has passed away. A reader recently asked me about this situation:

"I am a Manitoban whose brother has passed in April 2016. My father was a beneficiary but died in 1998. My brother's will included my father as a beneficiary in other words he was not removed from the will. According to my understanding of the Wills Act, specifically #25, 25(1) and 25 (2) my sister and I should inherit my father's share equally. The will showed my mother, my other brother (both still alive) and my father (dead) as beneficiaries.

The testator also had a daughter and forgot to update his will to include her. She lives in the U.S. but just turned 18 in March. She is attending college. The ex common law partner has been out of the picture a long time. Am I entitled to my father's share? 

I think the Intestate Succession Act 5 (1) also supports my line of reasoning. Am I incorrect in believing I am entitled to something ?"

If your father was a beneficiary under the will but died before your brother did, there are two possibilities for what happens with his gift. They depend on the wording of the will because specific wording in a will is always going to supercede the default position set up in the legislation.

One possibility is that your brother's will simply left the gift to your father without  making any statements about what would happen with the gift if your father predeceased him. If that is how the will is worded, you are correct that section 25 (shown below) will apply but it isn't going to do what you think it will. Section 25 says that if a gift under a will cannot be given because the beneficiary has died, then the gift falls into the residue of the estate. This means the share that your father would have received will be shared among the other named residuary beneficiaries. That would appear to be your mother and brother.

25          Subject to sections 25.1 and 25.2 and except when a contrary intention appears by the will, real or personal property or an interest therein that is comprised, or intended to be comprised, in a devise or bequest that fails or becomes void by reason of the death of the devisee or donee in the lifetime of the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, is included in the residuary devise or bequest, if any, contained, in the will.

The other possibility is that the will DOES say something about what happens to the share of a beneficiary if that beneficiary dies first. For example, it might say that if your father died first, his share would go to his children, or to a charity, or to a particular person. A statement like that would be the "contrary intention" mentioned in the first line of section 25. If the will gives instructions like that for the disposition of the gift, then your father's share would be distributed according to those instructions.

Another example of wording that might affect the gift is the addition of the words "if he survives me" after the gift to your father. That would mean your father's share would not be passed on to his children unless specified in the will.

Section 25(1) does not apply because it deals with estate tails, which are not in play here. Section 25(2) also doesn't apply because it deals with what happens when "issue" of the deceased pass away before the deceased. Issue are children, grandchildren, etc, and not the parents of the deceased.

The age of majority in Manitoba is 18. I understand that your niece turned 18 before your brother died. Normally an adult child who does not have a disability does not automatically have a right to receive a share of her parent's estate, but in this case she is a student. She might be able to make a case for a share of the estate, though that would affect the entire estate and not just the share that would have gone to your father.

The Intestate Succession Act is irrelevant here because your brother was not intestate. "Intestate" means dying without a valid will.


  1. Hi, My grandpa's executor has somehow managed to keep all of his finances. He past away in 2008 & My grandma has only heard of this within the last year that his executor isn't distributing the deceased's property in accordance with the Will or with intestacy law. & Currently we don't have the financial stability to get a lawyer.. So I'm just wondering about any advice or tips that I can do since I turned 18 and think I may be able to help my grandpa out. It's a large sum of money that I had been notified about. So if you're able to e-mail me any advice, I'd be very thankful, because my family could really use the help.

    1. I no longer reply to questions by way of email. I'm prepared to make general comments here on my blog, but email doesn't work for me. A lot of people try to take advantage of it by sending me "just one more thing" over and over. I sell legal advice for a living so I really don't feel like giving it away. General information on a blog, sure. Personalized advice on email? Nope.


  2. Just not sure what options may be available to pursue?

    My grandmother had three daughters (one of whom was my mother who pre-deceased all of them a good 32 years ago).

    My grandmother passed away 17 years ago which is coincidentally the same amount of time I have been completely estranged from my aunts. I took a lot for granted in terms of the estate at that time (very naive) and in fact asked no questions about any assets focusing strictly on mourning the loss. Recently, I have learned that I may have held a stake in her estate in one of two possible ways: I may have been named in a Will (however I don't even know if there was a Will. If there was no Will I understand (I think?) that I may have been entitled to my mothers share. Please feel free to straighten me out this far if I'm way off.

    I have sent a request to the local Ontario courts for a copy of my grandmother's estate file. When I receive the docs, and after all this time, would I have any recourse if: If there was a Will that excludes mention of my mom or me? If there was a Will that did include my mom or me that was ignored? If there was no Will?

    Maybe there is a statute of time limitations on these sorts of things. I have no idea what my grandmother's assets looked like at the time but do know one aunt still resides in the home worth easily over a million. In case it matters said aunt resided with my grandmother before her passing with her children. For all I know she may have been added to all accounts jointly, to help manage my grandmother's affairs, but doubtful she would have been added to the property title.

    The plot thickens. I have recently learned that one of my two aunts has passed (not the one residing in my grandmother's house). She had no spouse or children. Again, I believe that if it turns out that she died intestate I would stand to share her estate, with my remaining aunt, based on me being the only child of her pre-deceased sister (my mom). Gosh this gets confusing.

    Two months have passed since she died. The local Ontario courts have confirmed that they have no file so far. I assume that my surviving aunt will come forward at some point either as executor or administrator.

    Just to confirm, there will be no communication between myself and surviving aunt. Let's just leave it at that.

    What can I do to confirm if I'm named in a Will (if there is a Will) and/or how to proceed if there is no Will and (if) I hold a legitimate claim?

    If I did nothing would any person or office make efforts to locate me?

    There is definitely a property involved here too. Can my surviving aunt apply for administration or probate and suggest to the courts that I no longer exist?

    Thank you kindly in advance for any general advice or direction.

    1. Okay, there is way too much here to cover in a quick blog post. Contacting the court was the right first step, as you cannot make decisions about anything without facts. If you want a one-on-one phone consult with me, call my office at 709-221-5511 and set up a consultation. I charge $400 for that kind of consult.


  3. Hi Lynne,

    I'm in Alberta and our Section 25 in the Wills Succession Act states that an ex-partner cannot benefit from a will. I want to add a handwritten codicil to my will saying that even if we become ex-partners, I wish him to inherit. Is this possible?

    1. Yes, it's possible. I addressed your question in a new blog post dated November 26, 2017.


  4. I have a different sort of question. My husband's uncle died intestate and my husband is the personal representative of his estate. His application for administration is not complete as it is being held up by final asset reporting to him, by the Public Trustee. My husband's aunt died about 2 months after my husband's uncle. Of course she is a beneficiary and had signed both the NC15 and NC16 to nominate my husband as representative. All other beneficiaries signed these documents choosing my husband as representative as well. Since she has died, does my husband now have to have her adult children sign the NC15 and NC16 or can he proceed and process her share to "The Estate of" his aunt.


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