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Will WESA make “per stirpes” extinct?

A client of mine once sent a draft will back to me having deleted the term “stirpes” and replaced it with “stripes”. He had had no idea what the word meant, and had replaced it with the first suggestion that his word processor spell checker gave him.

I generally try to avoid the use of archaic language (English or Latin) in drafting estate planning documents. I want my clients to understand what they are signing. I find, though, that there are certain terms of art that are difficult to replace with modern alternatives, and per stirpes is one of them.

When someone makes a gift in a will or trust to a person’s issue per stirpes, those two little Latin words express the following concepts:

  • divide the property into the number of shares required to make one share for each child of the person who is alive, and one share for each child of the person who has died before that time but leaves children or remoter issue alive at that time;
  • when dividing a share among the issue of a child who has died, apply the foregoing principle at each generation so that children always take in substitution for a deceased parent.

The phrase has survived because it’s difficult to find an equally efficient way to express this complex but commonly-encountered concept.

The trouble with per stirpes is that despite its efficiency when used correctly, it is frequently misused and misinterpreted. For example, wills containing a gift to “my children per stirpes” rather than “issue per stirpes” cause interpretation difficulties because if the children are the only beneficiaries, then per stirpes has no meaning. In the 1995 case of Hamel Estate the B.C. Supreme Court struggled to interpret a trust under a will for “my issue alive at my death in equal shares per stripes (sic)”, ultimately ruling that because of the added phrase “alive at my death”, all living issue of every generation were entitled to an equal share.

I was pleased to find that the Wills, Estates and Succession Act (not yet in force) contains within it a possible modern alternative to per stirpes. Subsection 42(4) of WESA says that if a gift of property in a will is made to a class of persons that:

  • is described as the will-maker’s “issue” or “descendants” or by a similar word (offspring? progeny? brood?), and
  • encompasses more than one generation,

the property must be distributed in accordance with rules specified in section 24 of WESA, which follow the per stirpes concept described above. As a result, once WESA is in force I can leave the residue of my estate “to my descendants” and a cascading per stirpes distribution will be achieved without the need to resort to a dead language.

Unfortunately, the helpful shortcut provided by WESA applies only to gifts to the will-maker’s descendants, not descendants of other persons. That means that if I wanted to leave a gift to my sister’s “issue per stirpes” it’s not clear that WESA allows me to simply make the gift to her “descendants” (or to her “spawn” for that matter). I hope that this provision will be amended in the future to broaden its application, as it gives a simple, clear way to achieve a fair multi-generational distribution.