Legal Fiction – not John Grisham

Yesterday we highlighted a legal fiction that following adoption one or both biological parents, are, no longer legally related to the child and either party have no rights with regard to each others estates on intestacy. Similarly a person conceived but not yet born will be treated as living at a specified time for the purposes of being a beneficiary under a Will. In several jurisdictions legislation specifically provides that reference to a child living at the death of any person include a child en ventre sa mere (literally in their mother’s belly).

Raymond Wesley died in November 1996 with an estate valued at around $200,000. In March 1997 probate of his will made in December 1995 was granted to his sister.

Raymond never married and had no children. He had four sisters and one brother. His sisters are, Julie, Terrie and Robyn Wesley, Kaye Carter and his brother is David Wesley. The three nephews and niece living at the date of Raymond’s death were Haydon, Andrew, Michael and Natasha.

Raymond’s Will left his estate to the children of his cousin Christopher Miller, and his nephews. However he didn’t include his niece Natasha as a beneficiary. Following his death, two further nephews Ben and Cameron were born (their mothers were both pregnant when Raymond died).

In most jurisdictions a Court may rectify a will if it does not accurately reflect the testamentary intentions of a deceased person, so as to give proper expression of those intentions.

Raymond’s sister Julie was the executrix of the estate. Initially she asked the court to interpret the will so that the beneficiaries include the children of Mr Miller and all of the nephews and nieces of the testator including those unborn at the date of the Raymond’s death. However as Raymond specifically named  eight beneficiaries the terms of the will are clear and the court found no ground for departing from them.

On 28 November 1997, Julie amended the application and sought rectification of the will to accurately reflect, and give proper expression to Raymond’s testamentary intentions.

Ben and Cameron were both en ventre sa mere. This would entitle them to an equal share in Raymond’s estate with the other beneficiaries. The Court did not think this rule was defeated by the words “and if they survive me by at least 28 days” therefore, Ben & Cameron are included among the nephews and nieces and are beneficiaries.

The Court decided that it was apparent from the evidence submitted that Raymond intended to benefit all his nephews and nieces who survived him. Therefore the will admitted to probate does not accurately reflect Raymond’s testamentary intentions.

The Will was rectified by including the following:

“and such other of my nieces and nephews living at my death absolutely if they survive me by at least 28 days and if more than one in equal shares”

Ensuring that all members of a class of beneficiaries – in this case nieces and nephews- qualify for a gift from an estate is a legal fiction that most people can live with. However it does remind us that any Will is a document that needs to be revisited throughout your life to ensure that it reflects your current circumstances.

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