WILLS AND ESTATES
Photo credit: Matthew Chen
Trevor Todd
Children Born after Death ©iStockphoto.com/Choreograph
I
recently had occasion to advise whether a greatgrandchild born after the death of the grandfather testator would inherit as part of the class of greatgrandchildren, as the child was then a fetus and would be born 3 months after the death of the grandfather. En Ventre Sa Mère Where a Will provides that the testator’s estate is to vest in all grandchildren of the testator alive at the time of the testator’s death, it has been held that a share of the estate will vest in any fetus that is alive in the abdomen of the testator’s daughter or daughter-in-law, that is, a fetus that is “en ventre sa mère,” at the testator’s death and is born alive. The common law developed the concept of “en ventre sa mère” as far back as 1748. In Doe v. Clarke 126 ER 617 (1765), the Court considered a situation where the Will left an equal inheritance to “such child or children as should be living at the time of my decease.” The Court held that a child that was born 7 months after the death of the testator, and thus was “en ventre sa mère” at the
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testator’s death, clearly came within the description of a child “living at the time of my decease.” “En ventre sa mère” is known as a longstanding legal principle of fundamental importance. As was noted in the leading case Montréal Tramways Company v. Leveille 1933 SCR 456 SCC, the concept dates back to Roman times, and remains entrenched in civil law codes around the world to this day.
“En ventre sa mère” is known as a longstanding legal principle of fundamental importance. In Re Sloan Estate (1937) 3 WWR 455, the Court stated that in construing a Will by a parent, credit him or her with those feelings which we commonly believe should be the attribute of a parent, and endeavour to construe the Will as if he or she were a just and fond parent. (I submit that grandparent would also apply.) The Court followed Villar v. Gilbey (1907) AC 139 in stating the principles of Will construction relevant to determining if a particular Will should include a child “en ventre sa mère.” (1) Words referring to children or issue born before, or living at or, as I think we must add, surviving BC Notaries Association
a particular point of time or event will not in their ordinary or natural meaning include a child “en ventre sa mère” at the relevant date; (2) The ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child “en ventre sa mère” at the relevant date and subsequently born alive if, but only if, such fictional construction will secure to such child a benefit to which it would have been entitled if it had actually been born at the relevant date; (3) The only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as born before or living at or surviving a particular point of time or event, a child “en ventre sa mère” must necessarily be within the reason and motive of the gift. It should be noted that in British Columbia, the potential entitlement of a child “en ventre sa mère” is subject to a 5-day survival rule imposed by the Wills, Estates and Succession Act (“WESA”). Pursuant to that rule, as set out in section 10 of WESA, a person who does not survive a deceased person by at least 5 days is deemed to have died before the deceased person for all purposes affecting the estate of the deceased person. Volume 29 Number 1 Spring 2020
