If you die before a forthcoming inheritance is paid out, your estate should still collect, a British Columbia appellate court ruled, overturning a lower court’s decision.
In a unanimous decision, the Court of Appeal for B.C. overturned an order by the Supreme Court of B.C. on the issue of when bequests made under a will are triggered — when you die, or when the payouts are actually made.
In a decision handed down in February 2025, the lower court ruled — based on its interpretation of a deceased man’s will — that the bequests made it his will didn’t vest until they were actually distributed. As a result, the estate of his son, who died before the proceeds of his father’s estate could be paid out, was disinherited.
The case involved the estate of Kenneth Douglas Jack, who died in 2018, leaving a will that split the proceeds of his estate between his two sons — primarily a ranch valued at $1.85 million, which the brothers jointly operated, and where they lived.
However, before the estate could be distributed, one of the sons died, without a will, and leaving no children.
The executor of the son’s estate then asked the court for an order that the father’s will vested at the time of his death — meaning that the son’s estate would be entitled to its share of the father’s estate, which represented the only significant asset of the son’s estate.
The court denied that request, ruling that the bequests didn’t vest until they were distributed, based on its interpretation of the father’s will — in particular, a clause in the will, which stipulated that the estate was to be divided between his children that were “then alive”.
The court took that to mean that what mattered was who was alive when the distribution took place, not who was alive when father died. And so, the judge dismissed the application from the son’s executor.
Now, that decision has been overturned on appeal.
“In my opinion, the chambers judge erred in law by failing to have regard to the entire will,” in interpreting the meaning of the clause that contained the words “then alive,” the appeal court said.
“In my view, a fair construction of this will is that Kenneth intended to make provision for all his children who survived him,” the appeal court said — adding that it’s rare for the courts to determine a vesting date other than the death of the testator.
The process of liquidating an estate, “takes time, and any delay in liquidating or dividing up an estate does not prevent a gift from vesting at the testator’s death absent clear language,” the appeal court said.
It allowed the appeal, set aside the lower court’s order, and replaced it with an order stipulating that the estate vested when the father died, and that the son wasn’t divested by his own subsequent death before the proceeds of the estate were distributed.