In the recent case of Unger Estate (Re) in the Supreme Court of British Columbia, the executors of the deceased’s estate approached the Court for guidance on what to do in rare and tragic circumstances. The court was called upon to decide whether a son that murdered his mother could inherit under the Will or if his share passed to his brother, infant daughter or two charities.

Son murders mother, executors seek the direction of the court

The deceased, a widow, was survived by her two sons, Clayton and Logan. Clayton entered a guilty plea to the criminal charge of second-degree murder of his mother and was sentenced to a life term of imprisonment with eligibility for parole after 10 years. Clayton has a daughter who was born 11 days after his mother’s death.

The deceased’s estate was worth approximately $860,000. Her Will directed the estate to be divided into as many shares as there are of her sons who were alive at the time of her death and the shares paid when they reached certain ages. It further directed that with respect to the share created for a son “who died” before her and left one or more of his “children alive at my death”, that share be divided equally among his children. If any of these gifts failed to vest, any of the estate remaining was to be split between two named charities.

The executors of the deceased’s estate sought advice and the direction of the court regarding whether Clayton was disentitled from receiving his share of the estate and, if so, to whom his share should pass.

Public policy excludes person responsible for death from taking any benefit

In Canada, there is a rule of public policy which excludes the person responsible for another person’s death from taking any benefit because of their criminal act. There is some case authority that this rule applies to disentitle a person from sharing in an estate if they caused the testator’s death.

As a result, all parties acknowledged that Clayton was disentitled from receiving a share of the estate. Clayton seemed to know about this rule too – he sent a letter to solicitors for the estate in which he agreed to voluntarily disclaim his entitlement.

Executors submitted property should be distributed to an “alternate beneficiary” described by the Will-maker

The executors pointed out that, on a strict interpretation of the Will, the gift from Clayton to his daughter cannot take effect because it is contingent upon Clayton’s death, but that he remains alive in prison. But they took the view that Clayton’s share should revert to his daughter, which was consistent with the intentions of the testator.

The executors also said that, for the purposes of inheritance, if a child is an unborn fetus at the time of the testator’s death, the child should inherit as if they had been born during the lifetime of the deceased.

Does public policy extend to disinherit murderer’s daughter?

Logan took the position that he should receive Clayton’s share of the estate. Logan argued that the rule of public policy extends to those who claim through the criminal’s estate, which includes Clayton’s daughter. He referred to an English Court of Appeal case, which found that the rule of public policy would deny the proceeds of a life insurance policy to anyone claiming through a wife that killed her husband.

The Public Guardian and Trustee of British Columbia, acting on behalf of Clayton’s daughter, submitted that Clayton’s share passes to his daughter by the express wording of the Will. It claimed that:

… in the circumstances of Ms. Unger’s death, i.e. her murder by Clayton, less violence is done to the intention of the Will-maker to deem the person responsible for the Will-maker’s death to have died before the Will-maker and the Will should be read as if Clayton pre-deceased his mother and the child is entitled to Clayton’s share of the residue.

Supreme Court decides son’s portion of estate passes to his daughter

Justice Jenkins held that the clear intent in the Will was that should either of the deceased’s children predecease her, any of their children who are alive at her death or an unborn fetus should receive the deceased child’s share. In British Columbia, this is facilitated by the provisions of the Wills, Estates and Succession Act 2009. Ontario makes similar allowances through section 31 of the Succession Law Reform Act. Under that section, when a testator’s child predeceases them, that child’s share can pass to their own issue (i.e. the testator’s grandchild(ren)).

On the facts of Re Unger Estate, the court ordered Clayton’s share to be paid to the Public Guardian and Trustee to be held in trust for the benefit of his daughter. This distribution, which essentially treated Clayton as if he had predeceased his mother, was found to be in accordance with the testator’s wishes. Logan, on the other hand, was not a valid alternate beneficiary and had no claim to Clayton’s share of the estate.


The skilled team of estate litigators at Derfel Estate Law act for beneficiaries, guardians, trustees, and other parties in Will disputes. We provide pragmatic advice to parties seeking advice and direction about the interpretation of a Will. Our team also advocates for clients seeking to challenge a Will or an executor’s conduct. To schedule a consultation, contact Derfel Estate Law online or call 416-847-3580. We proudly serve clients in the Greater Toronto Area and throughout Ontario.