Anti-Lapse Insights From Recent Ontario Cases
The anti-lapse provision of section 31 of the Succession Law Reform Act (SLRA)[1] is an exception to the common law rule that a gift in a will fails and lapses into the residue of the estate if the beneficiary predeceases the testator. Section 31 ensures that gifts to specific family members (child, grandchild, brother or sister) do not lapse in the event they predecease the testator, but pass to their surviving spouse or issue. Specifically, section 31 states the following:
Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,
(a) if that person had died immediately after the death of the testator;
(b) if that person had died intestate;
(c) if that person had died without debts; and
(d) if section 45 had not been passed.
Devonport v Devonport, 2025 ONCA 753
The Ontario Court of Appeal recently addressed the application of the SLRA’s anti-lapse provision in Devonport v Devonport, 2025 ONCA 753. In this case, the testator had left a specific property to her son in her will, but the son predeceased her.[2] The application judge ruled that the SLRA’s anti-lapse provision applied, resulting in the son’s wife inheriting the property.[3] The Court of Appeal upheld this decision, emphasizing that the anti-lapse provision applies unless a clear contrary intention is evident in the will.[4] The application judge stressed that courts should avoid using conjecture or strained inferences to find such a contrary intent.[5]
Dokis v Burgaretta et al, 2025 ONSC 4287
The Ontario Superior Court of Justice considered the application of section 31 of the SLRA in Dokis v Burgaretta et al, 2025 ONSC 4287, where four beneficiaries had predeceased the testator. The testator crossed out some of the names of her siblings who had died after the date she had written her holographic will.[6] These alterations were not validly made under section 18(2) of the SLRA. Only the writing that obliterated the bequest to one nephew was found to be valid under section 18(1) of the SLRA[7]. Crucially, because the gift to the nephew was obliterated, the testator’s nephew was not entitled to protection under section 31 of the SLRA.[8]
As section 31 did not apply, the court employed the “armchair rule” and the “golden rule of construction,” which presumes against intestacy, to direct the lapsed gift to the residue of the estate.[9] This decision aligned with the testator’s clear intent to benefit certain family members while excluding others, thus preventing the excluded family members from benefiting through an intestacy.[10] Most notably, Justice Papageorgiou held that the court is not excluded from construing the testator’s intention with respect to other beneficiaries who do not fall under the categories set out in section 31.[11] Even if a gift lapses, the court retains the ability to examine the surrounding circumstances to ascertain the testator's intent, specifically, whether the lapsed gift should be distributed via intestacy or divided per capita among the remaining beneficiaries.[12]
Pierce v Oswald, 2025 ONSC 5344
In Pierce v Oswald, 2025 ONSC 5344, another 2025 Superior Court of Justice decision, the Court interpreted conflicting terminology in the testator’s will regarding the distribution of the estate’s residue. Clause 3(d) of the will invoked a per stirpes distribution while simultaneously naming the testator’s individual siblings as beneficiaries, after her only child had predeceased her.[13]
Justice Sanfilippo employed the “armchair rule” to ascertain the testator’s subjective intent.[14] The central question was whether the testator intended to benefit her five siblings equally, benefit them in stocks, or benefit only the one sister who survived her.[15]
The Court ultimately held that the explicit use of the term per stirpes, the absence of an express contrary intention, and a consideration of other will provisions led to the conclusion that the testator intended to make an intergenerational gift.[16] While section 31 of the SLRA was deemed inapplicable because the gifts did not lapse, the Court noted that the outcome would have been the same since the predeceased beneficiaries’ spouses had also predeceased.[17]
Key Takeaways
What are the key takeaways from these recent cases?
The anti-lapse rule is tough to beat. If you do not want a gift in a will to go to the beneficiary’s spouse or kids, your will needs to make that clear. Courts will not stretch the rules to find a contrary intention.
The rule only protects certain family members. Section 31 applies only to gifts to the testator’s child, grandchild, brother, or sister. If the gift is to someone else, like a niece or nephew, the anti-lapse rule does not apply.
If the anti-lapse rule does not apply, courts turn to interpretive principles to determine the testator’s intent. Where a beneficiary falls outside the application of section 31 of the SLRA, the courts will rely on the armchair rule and the golden rule of construction to determine the testator’s subjective intent and prevent a partial intestacy.
Language in the wills should be clear and consistent. Conflicting language, such as using per stirpes while naming individuals, forces the court to look to the testator’s intent, sometimes yielding the same result as the anti-lapse rule.
Thank you for taking the time to read. Have a nice day! - Stefania
[1] Succession Law Reform Act, RSO 1990, c S.26.
[2] Devonport v Devonport, 2025 ONCA 753 at para 1.
[3] Ibid.
[4] Ibid at para 4.
[5]Devonport v Devonport, 2024 ONSC 6764 at para 43.
[6] Dokis v Burgaretta et al, 2025 ONSC 4287 at para 21.
[7] Ibid at para 27.
[8] Ibid at paras 43-44.
[9] Ibid at paras 65-66.
[10] Ibid at para 65.
[11] Ibid at paras 63.
[12] Ibid at paras 61.
[13] Pierce v Oswald, 2025 ONSC 5344 at para 11.
[14] Ibid at paras 26-28.
[15] Ibid at para 30.
[16] Ibid.
[17] Ibid at para 47.
Last Updated: December 8, 2025
Disclaimer: This article is intended for general information purposes only. It is not intended as legal advice. It does not create a lawyer-client relationship and may not address your specific circumstances. You should consult with a qualified lawyer.