What is the testatrix's interpretation of the words "surviving children" in her will?

Alberta, Canada


The following excerpt is from DS v GFH, 1985 ABCA 144 (CanLII):

In Horton v. Horton (1978) 2 E.T.R. 293 (B.C.S.C.) the relevant facts are well set out in the headnote which I quote: "The testatrix in her will directed a division of the residue of her estate 'in three equal shares among my surviving children'. At the time the will was drawn the testatrix's three children were alive. Subsequently one of the testatrix's children predeceased her. An application for the interpretation of the will was made to determine whether the anti-lapse provisions of the Wills Act (B.C.) applied, in which case the issue of the testatrix's deceased child would share in the testatrix's estate, or whether the testatrix intended to benefit only those of her children which survived her." Andrews J. interpreted the words "surviving children" to mean 'my children who survive me' and not 'my presently surviving children.'

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