By Jonathan Fung and Mackenzie Do

When the Court is asked to interpret a will, the Court is required to give effect to the will-maker’s intentions. As such, it is important that a will-maker be specific and clear as to their intentions when preparing their will. Uncertainty in the meaning of clauses in a will can lead to costly litigation. This was the case in Lewis v Jack, 2026 BCCA 18, where the British Columbia Court of Appeal was asked to interpret a will and consider whether the testamentary gifts vested on the date of the will-maker’s death, or on the date of distribution. The question was critical in this case because one of the beneficiaries died after the will-maker’s death, but before the estate was distributed.

This decision offers valuable guidance for estate planners, executors, and beneficiaries navigating estate administration.

The Will

Kenneth Douglas died on October 19, 2018, leaving a will which named his two adult sons, Travis and Jason, as beneficiaries.

Kenneth’s will made the following provision at Clause 3(d):

To divide the residue of my estate then remaining into as many equal shares as there shall be children of mine then alive and to give absolutely one (1) such equal share to each child.

On May 13, 2019, Travis was granted administration of his father’s estate, which had an approximate value of $1.85 million.

On February 24, 2023, prior to distribution of the residue of Kenneth’s estate, Jason died.  Given that Jason was not “then alive” for the distribution of the residue, the question was whether Jason’s estate would be entitled to any of the residue of Kenneth’s estate.

The Presumption of Early Vesting

Writing for the Court of Appeal, Madam Justice Fisher began by affirming the well-established presumption of early vesting; there is a starting presumption that a gift vests at the time of the will-maker’s death unless there is a clear intention to the contrary expressed in the will.

The Court of Appeal noted that unless the gift is contingent on a condition personal to the beneficiary, such as the beneficiary reaching the age of majority, the presumption of early vesting applies. The Court of Appeal cautioned against interpreting a will in a manner that would effectively allow the executor or administrator to postpone distribution or otherwise determine the date of vesting, noting that such an approach would create significant potential for inconvenience or fraud.

The Court of Appeal went on to note that Clause 3(d) of Kenneth’s will needed to be interpreted in the context of the will as a whole. They held that the words “then alive” do not indicate Kenneth’s intention to rebut the presumption of early vesting. Rather, it was clear from the will as a whole that Kenneth intended to provide for all his children who survived him, and the words “then alive” referred to the class of beneficiaries alive at the time of his death, rather than to when the residue of his estate was distributed.

The Court of Appeal concluded that the residue of Kenneth’s estate vested on his date of death, and therefore should be divided into two equal shares, with one share being given to each of Travis and Jason, notwithstanding Jason’s death prior to the date of distribution.

Key Takeaway

In interpreting a will, the Courts give effect to the will-maker’s intention having regard to the entire will. Unless there is clear language in the will that delays the date of vesting, a beneficiary is presumed to become legally entitled to a gift on the date of the will-maker’s death. For executors and beneficiaries, knowing when property vests can help prevent disputes and keep estate administration predictable.

For more information regarding estate planning and litigation, please contact Jonathan Fung or another member of our Estates & Trusts group.