Pierce v Oswald (2025 ONSC 5344)
Estate litigation frequently arises not because of large financial disputes, but because of poor wording in a Will.
A major concern continues to be the phrase “per stirpes.”
When it is misunderstood or incorrectly used, it creates uncertainty and forces Courts to intervene. The Ontario Superior Court’s decision in Pierce v Oswald is another example—fortunately, it also provides useful guidance.
Why “Per Stirpes” Causes Trouble
“Per stirpes” is often used to mean “by family branch.” When a beneficiary dies before the testator, their branch of the family receives the deceased beneficiary’s share.
However, the Courts have not always approached misused per stirpes language consistently:
- In Lau v Mak Estate, the Court was highly critical of incorrect usage and suggested that if “per stirpes” is misused, Courts might simply ignore it.
- But the Ontario Court of Appeal in Dice v Dice Estate took a different approach, treating per stirpes as a meaningful expression of intention to benefit family branches.
- That view was later followed in Jonas v Jonas, and now again in Pierce v Oswald.
Ontario Courts now increasingly try to give meaning to per stirpes rather than disregarding it.
Factual Background
Five Sisters, One Will, and a Phrase That Needed Clarifying
The testator, Frieda Holtzgethan, died in 2016. Her will provided that if her daughter predeceased her (which happened), the residue of the estate was to be divided among her
“… five sisters “in equal shares per stirpes … for their own respective uses absolutely.”
By the time Frieda died:
- Four sisters had already died but had surviving children.
- One sister, Hilda, survived Frieda but has since died.
The estate trustee properly sought Court guidance. Three interpretations were possible:
1️⃣ Divide the estate into five equal shares and give each deceased sister’s share to her children.
2️⃣ Give everything to the surviving sister Hilda, with the others’ shares saved under Ontario’s anti-lapse provision (SLRA s.31).
3️⃣ Give the entire residue to Hilda as the only surviving named sister.
The Court’s Approach: What Did the Testator Want?
Justice Sanfilippo emphasized that courts must determine the testator’s actual intention, reading the will as a whole and figuratively sitting in the testator’s “armchair.”
He concluded that Frieda intended:
✔ to benefit all five sisters equally, and
✔ if any sister died first, her family branch should take her place.
The problematic wording “for their own uses absolutely” did create ambiguity. But the Court held that per stirpes must be given effect, especially when there is no indication the testator wanted a per-capita distribution among only the living sisters.
The Anti-Lapse Rule Supported the Same Result
Section 31 of Ontario’s Succession Law Reform Act prevents gifts to siblings from failing when they die before the testator. Instead, the gift passes to their descendants.
So even if the per stirpes wording did not save the gift, the SLRA would have.
The Result
The residue was divided into five equal shares:
- Each predeceased sister’s share went to her children.
- Hilda’s share (as the only sister who survived Frieda) also ultimately passed to her children.
- Estate costs were properly paid from the estate because the application was necessary and reasonable.
Key Takeaways for Estate Planners and Executors
- Ontario Courts now favour interpreting “per stirpes” to benefit family branches, consistent with Dice and Jonas.
- Courts focus on actual intention, not just literal wording.
- Ontario’s anti-lapse provisions can often reach the same result, but should not be relied upon to fix poor drafting.
- Ambiguity leads to applications, delay, and cost.
Considerations
This decision reinforces an important message: precision in Wills matters. A single misunderstood Latin phrase can send families to Court years later. Thoughtful drafting prevents disputes and protects the testator’s true intentions.
If you’re an Estate Trustee facing unclear language, or if your will still relies on traditional expressions like per stirpes, careful legal review may save significant trouble later.
Diagram
In the diagram above, there is a comparison to “per capita”. Once Alice has died before Bob, her children get nothing. If the arrangment was switched over to per stirpes, then, her surviving children would share her 1/3 share
Brian Madigan LL.B., Broker