After a Beneficiary Dies: Why a Stale Will Causes Problems

A 71-year-old widow in Sarnia signs her will in 2018, leaving her estate equally to her two adult sons. In 2024, the younger son dies in a workplace accident, leaving a wife and an eight-year-old daughter. The mother dies in 2026, having never touched the will. Who gets the younger son's half of the estate — his daughter? His wife? Or does it roll back to the surviving older brother?

The answer in Ontario surprises almost everyone: the son's widow and the granddaughter share his half, by force of a statute called the anti-lapse rule.^[1] Section 31 divides the redirected gift as if the son had died intestate immediately after his mother — and because Ontario's intestacy formula gives a surviving spouse a preferential share (currently $350,000) before anything else is divided, the wife may take most, or even all, of it. The older brother gets nothing extra. The will is silent on the contingency, and the province fills the gap with a default the mother never chose and never confirmed.

That gap-filling is the heart of the problem when a beneficiary dies before you. Provincial law has opinions about what your will means. Those opinions are useful when they align with your wishes and disastrous when they don't.

What "lapse" actually means #

In Canadian common-law provinces, a gift in a will "lapses" when the named beneficiary dies before the testator (the person who made the will) and no substitute is named. At common law, a lapsed gift fails entirely — it doesn't go to the beneficiary's family, it doesn't stay in their estate. Instead, it falls back into the residue of your estate, where it gets swept up with whatever else you didn't dispose of specifically.

That common-law default produced harsh results often enough that every Canadian common-law province has overridden it with a statutory anti-lapse rule for certain family relationships. The rules vary in detail but share a structure: if the predeceased beneficiary was within a defined class — typically your child, grandchild, or sibling — and that beneficiary left descendants of their own, the gift passes to those descendants instead of lapsing.

The phrase to remember is unless a contrary intention appears in the will. Anti-lapse statutes are default rules. A testator who writes a will that clearly says otherwise gets the outcome they wrote, not the statutory default.

Province-by-province anti-lapse rules #

The statutes are similar enough that a single mental model works for most provinces, with some province-specific edges.

Ontario. Succession Law Reform Act section 31 covers gifts to a child, grandchild, brother, or sister of the testator. If that beneficiary dies before the testator and leaves a spouse or issue (descendants) surviving the testator, the gift passes to those persons as if the beneficiary had survived the testator and then died immediately.^[1] The rule yields to a contrary intention in the will.

British Columbia. WESA section 46 is broader in structure. When a gift cannot take effect for any reason, including the death of the beneficiary before the will-maker, the gift passes in this priority order: first, to any alternative beneficiary named in the will; second, if the beneficiary was the will-maker's sibling or descendant, to that beneficiary's descendants; third, to the surviving residuary beneficiaries in proportion to their interests.^[2] The cascade applies whether the beneficiary's death occurred before or after the will was made.

Alberta. The Wills and Succession Act section 32 is narrower than Ontario's or BC's rule: substitution to the predeceased beneficiary's descendants applies only where that beneficiary was a descendant of the testator — a gift to a predeceased sibling is not rescued. The section otherwise sets out a cascade similar to BC's: named alternate first, then the predeceased descendant's own descendants, then the surviving residuary beneficiaries, then intestacy.^[3]

Saskatchewan, Manitoba, Maritime provinces, and the territories. Each has its own anti-lapse provision, but coverage varies more than most people expect. Manitoba's rule covers a predeceased child, other issue, or sibling of the testator, and expressly divides the redirected gift as if that person had died intestate without a spouse — so only their issue take.^[4] Nova Scotia's provision covers only a child or other issue of the testator; siblings are not included.^[5] The safe general assumption: a gift to anyone outside your own descendants may not be protected in your province, and the only way to be certain is to name an alternate in the will.

The hole everyone forgets. None of these statutes covers a gift to a friend, cousin, niece, nephew, or unrelated beneficiary. If your will leaves $50,000 to your best friend and she dies before you, the statute is silent — the gift lapses, and the $50,000 stays in your estate's residue.

How lapsed gifts cascade #

When a specific gift lapses and no anti-lapse rule rescues it, the asset doesn't disappear. It moves down a chain:

1. Alternate beneficiary, if named. "To Sarah, but if she predeceases me, to her brother Tom." Tom takes if Sarah dies first.
2. Anti-lapse statute, if applicable. Sarah was the testator's daughter and left children — the children take.
3. The residue clause. "All the rest of my estate to my husband John." The $50,000 friend-gift falls into John's share.
4. Intestacy. No residue clause, or the residuary beneficiary also lapsed — the asset distributes under provincial intestacy rules to a defined class of relatives, starting with spouse and children.

Step 4 is where this becomes a genuine planning failure. Dying with a will but a stale one can leave a portion of your estate flowing through provincial intestacy rules — the exact outcome the will was written to avoid.^[6] Our pillar on dying without a will in Canada walks the intestacy formulas province by province.

Residuary beneficiary deaths — the silent disaster #

Most articles on this topic focus on specific bequests because they're easier to illustrate. The residue clause is the more dangerous case.

Imagine a will that says: "I leave my house to my son Alex, $10,000 to my church, and the residue of my estate to my brother Marcus." If Marcus dies before the testator and the will names no substitute residuary beneficiary, the entire residue — which in most estates is the bulk of the wealth — has no home.

In Ontario, if the predeceased residuary beneficiary was the testator's sibling and Marcus left a spouse or descendants, section 31 redirects the residue to them, divided as if Marcus had died intestate.^[1] If Marcus was instead a friend or an unrelated person, the residue passes by partial intestacy to the testator's heirs at law — possibly producing the result that the testator's estranged cousin in another province inherits half the house's sale proceeds.

Two drafting habits prevent this:

• Always name an alternate residuary beneficiary. "Residue to my brother Marcus; if Marcus does not survive me by 30 days, residue to The Canadian Cancer Society."
• Include a sweeping ultimate-residue clause. "If all the above-named residuary beneficiaries fail to survive me, residue to be distributed as if I had died intestate under the laws of [province]." This at least gives the executor a clear road map.

How "per stirpes" interacts with anti-lapse #

The Latin phrase per stirpes (literally "by the roots") tells the executor to follow the family line down when a beneficiary in a generation has predeceased. "To my children in equal shares, per stirpes" means each predeceased child's share gets divided among that child's own children.

This drafting choice does two useful things at once. First, it expresses an intention about substitution inside the will, which generally counts as a "contrary intention" that displaces the statutory anti-lapse default with the testator's own customized version. Second, it handles the case of multiple-generation deaths better than most statutes — a grandchild predeceasing alongside the parent still has the per stirpes structure to fall back on if great-grandchildren exist.

Per stirpes is not free of complications. It works cleanly for tidy families. For blended families with stepchildren, half-siblings, or adopted children, the line of descent can become contested. A lawyer-drafted clause that names the family members directly is often clearer than a Latin shorthand.

When the deceased beneficiary's own will conflicts #

A second-order trap that catches families off guard: even when an anti-lapse rule does redirect a gift, the redirection ignores whatever the predeceased beneficiary's own will says, because the gift never actually passed into the deceased beneficiary's estate. Who takes it instead depends on the province. In BC, Alberta, and Manitoba, the statutes send the gift to the predeceased beneficiary's descendants only — the beneficiary's surviving spouse receives nothing, even if that spouse was the sole heir under the beneficiary's own will.^[2][4] Ontario is the outlier: section 31 divides the gift as if the predeceased beneficiary had died intestate, which brings that person's spouse into the distribution, often for the largest share.^[1]

In the Sarnia scenario at the top, that means the son's widow and the eight-year-old granddaughter share the redirected half under Ontario's intestacy formula, with any portion passing to the child generally held by a court-appointed guardian or trustee until she reaches the age of majority. Move the same family to BC or Alberta and the widow receives nothing — the full share goes to the granddaughter. Either default may be far from what the mother actually wanted; a fresh will after the son's death — or a properly drafted substitution clause from the start — was the correct intervention.

A short checklist for updating after a beneficiary dies #

When a named beneficiary in your will dies, work through these in order:

1. Identify which bequest the beneficiary received. Specific gift, percentage gift, residue, or contingent gift?
2. Check whether your will named an alternate for that gift. If yes, the alternate's share is fine; the original is not.
3. Check whether the anti-lapse statute in your province would rescue the gift. Only relevant if the deceased was within your province's protected class — typically your child or grandchild, and in most (not all) provinces a sibling — and left descendants.
4. Decide whether the statutory default matches your current intention. If yes, you can leave the will alone in the short term. If not, prepare a codicil or new will.
5. Update beneficiary designations on registered accounts and insurance separately. Those are not governed by the will and are not protected by anti-lapse — a TFSA beneficiary designation that names a deceased person ordinarily collapses the asset into the estate, where it becomes part of the probate base.

If the deceased beneficiary was a primary residuary beneficiary, treat the update as urgent. Specific gifts can usually wait a few months; a stale residue clause is the configuration that produces partial intestacies.

What we focus on at It's Simple Will #

Our will questionnaire prompts for substitute beneficiaries on every meaningful gift — primary, alternate, and residue — and surfaces the per stirpes choice in plain English rather than buried Latin. The product is built around the assumption that your will needs to keep working when life events disrupt it, including the worst event of all.

When circumstances change materially — a beneficiary dies, you marry or divorce, a child is born — the right move is usually a fresh will rather than a patch. Our pillar on how to write a will in Canada covers the structural choices, and how often you should update your will covers the cadence.

For estates large enough that a partial intestacy would significantly change the distribution, a licenced estate-planning lawyer should review your substitution clauses and residue drafting. The statutory rescues exist, but relying on them in 2026 means accepting the default that the legislature chose decades ago — which may not be the default you would write yourself.