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In his will, Charlie bequeaths his estate to his "oldest living grandchild." Upon Charlie's death, his two oldest living grandchildren are Bob and Alice. Bob was born in Vancouver, British Columbia on March 7th at 11 p.m. local time. Alice was born the next day, March 8th, in Halifax, Nova Scotia at 1 a.m. local time, which is 2 hours before Bob was born, due to the time zone difference. Who inherits Charlie's estate?

I'm interested in the answer for Canada, but other countries would also be of interest.

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FlanMan
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2 Answers2

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As you have stated, Alice was born two hours prior to Bob. In a will, "eldest" or "oldest" typically is equated with "first-born" (see Daniel N. Mattarlin, "A Simple Legacy: 'To My Children'" (1967) 12:3 McGill L.J. 240; Frederick Read, "The Legal Position of the Child of Unmarried Parents" (1931) 9:9 Can. Bar Rev. 609; An Act Relating to Wills, Legacies and Executors, and for the Distribution of the Estates of Intestates, S.N.S. 1758, c. 11, s. XII). It often is a reflection of an intention to borrow from the ancient law of primogeniture (which is all about literal order of birth), rather than to refer to a person's legal age as defined by statutes and anniversaries. Between Alice and Bob, Alice is the first-born and therefore the oldest under that understanding.

But the question of who inherits depends on much more than the interpretation of this one word. For example, most (or all) provincial succession statutes give courts the power to rectify a will if the court determines that the will fails to carry out the will-maker's intentions. Evidence could be presented about how the birthdays of the two were celebrated in relation to each other, who the will-maker understood to be the oldest (if they both existed when the will was made), etc.

Jen
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Each party will do discovery to obtain evidence and testimony, share that material with the opposing side, and one of two things will happen:

  • The evidence/testimony points to one set of facts being the truth, and both sides will agree; end of dispute.
  • Both sides will litigate in court their interpretation of the evidence and testimony, and the judge will decide; or jury if they're going that way.

In this case, Alice will argue "time zones", and that would be a complete slam-dunk in court - to the point where if Bob raises the issue, it's likely to be deemed a waste of the court's time. As such, if Bob raises it, the argument better be pretty good. Like I don't know, Halifax was in the Eastern time zone then while Vancouver did daylight savings? I don't know, but it'd be a popcorn moment - you'd either "learn something new today" or watch the lawyer get taken behind the wood-shed.

Far more likely, Bob's attorney would concede the point, and raise other theories as to why the "eldest" clause is invalid.

Harper - Reinstate Monica
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