What Happens if a Beneficiary Has Died?
Most people assume that when they leave a gift to someone in their Will, that person will receive it. But things get complicated when a beneficiary dies before the testator (the person who made the Will).
A recent Ontario Court of Appeal decision, Devonport v. Devonport, 2025 ONCA 753, highlights just how important it is to understand what happens in this situation, and how easily families can end up in litigation if a Will isn’t clear.
Historically, if a beneficiary died first, the gift simply “lapsed.” That means it failed and became part of the residue of the estate, often benefitting someone entirely different from what the testator intended.
To prevent this outcome, Ontario has an important legal rule known as the “anti-lapse provision”, found in section 31 of the Succession Law Reform Act (SLRA).
What is the Anti-Lapse Rule?
At common law, a gift to a beneficiary who died before the testator would fail.
For example:
If you leave a gift to your adult son, but he dies before you, the traditional rule would cause that gift to lapse and fall into the residue, potentially going to someone you never intended.
Section 31 changes that result in certain situations.
How the Anti-Lapse Rule Works
Under Section 31:
IF you leave a gift to your child, grandchild, brother, or sister,
AND that person dies before you,
BUT they leave a spouse or children who survive you,
THEN your gift does NOT lapse.
Instead, the law treats the gift as if the beneficiary had died immediately after you, passing it down to their spouse and/or children.
Why Does This Matter?
The anti-lapse rule protects the families of beneficiaries who die before the testator. Without it, those families might receive nothing.
In Devonport v. Devonport, a mother left a property to her son. He died before her, leaving a spouse but no children. The daughter argued that the gift lapsed and should fall into the residue, meaning she would inherit it instead.
The court disagreed. Because the son was a child of the testator, and the Will did not show a contrary intention, section 31 applied. The property passed to the deceased son’s wife, not to the daughter.
This case is an important reminder: if a Will isn’t explicit, section 31 can completely change who receives a gift.
Can the Testator Override the Anti-Lapse Rule?
Yes. Section 31 applies only if the Will does not express a “contrary intention.”
This means a testator can say something like:
“If my son predeceases me, this gift shall lapse.” or
“I give this property to my son, if he survives me, otherwise to my daughter.”
Clear wording like this ousts section 31.
But the contrary intention must be explicit. Courts will not guess, assume or infer it from vague wording.
What This Means for Your Estate Planning
The anti-lapse rule can create outcomes you may not expect. To avoid surprises:
If you want a gift to pass to your beneficiary’s spouse or children:
The anti-lapse rule might accomplish this automatically (if the beneficiary is your child, grandchild, brother or sister), but it’s still best to state your intention clearly.
If you do NOT want your beneficiary’s spouse to inherit:
You must say so explicitly in your Will. Without clear wording, section 31 may automatically pass on the gift to your beneficiary’s family.
Ambiguity leads to disputes, court applications, and strained family relationships.
If you’re preparing a Will or reviewing an existing one, it’s important to consider what should happen if a beneficiary dies before you.
If you would like help ensuring your Will reflects your exact wishes, please contact us to schedule a consultation.
This blog post is for informational purposes only and is not intended to provide legal advice. If you require legal assistance, before taking any action you should contact us or another qualified lawyer to discuss your situation.
