Family-size Class Warfare – Who Gets the Ranch?
March 12, 2026
BY Greg Blue
Kenneth Jack probably had no idea he was setting up a future class war when he made his will calling for his estate to be divided equally amongst his children who survived him, but that’s what happened.
Mr. Jack the Senior (“Mr. Jack”) made a will in 2006 and died in 2018. His will called for the residue of his estate to be divided equally among “my children then alive.” A term in a will that says what is to happen with the residue of the estate is called a “residuary clause.” Residue is the portion of an estate left over after all debts, funeral expenses, and other expenses are paid and specific property that the will gives to particular beneficiaries has been distributed to those beneficiaries.
Mr. Jack had two sons we’ll refer to by their initials T and J. In his will he appointed T as his executor. The will had usual wording giving the executor power to sell or retain particular assets in the same form as they were at the will-maker’s death and also gave the executor discretion regarding the timing of any sale. The largest asset in Mr. Jack’s estate was a ranch which the two sons ran together.
The gift to Mr. Jack’s children under the residuary clause in his will was a “class gift,” meaning that the beneficiaries are identified by means of a description of a class of persons to rather than being identified individually. Sometimes post-mortem disputes can arise about when the class of beneficiaries was meant to close, or in other words about the size of the class.
The will provided for the possibility that Mr. Jack might have more children, because . another term in it said that if anyone became entitled to a share of the estate while under 19, the share would be held in trust by the executor until that person reached 19 years of age.
Both Mr. Jack’s sons survived him, but J died before the estate was distributed. J had a spouse but no children. J’s and T’s mother, Mr. Jack’s ex-wife, became the administrator of J’s estate with the consent of J’s spouse. The only asset with significant value in J’s estate was his interest in the ranch.
T claimed all of the residue of Mr. Jack’s estate, including the ranch, maintaining that “my children then alive” in the residuary clause in the will meant the children of Mr. Jack who were alive when the residue was distributed. That would mean T would get it all.
T’s and J’s mother, acting as J’s administrator, sued T for a declaration that on the proper interpretation of the will, “my children then alive” meant Mr. Jack’s children alive at the time of his death. That would mean that T and J’s estate shared equally in the ranch along with the rest of the residue. So T and his (and J’s) mother faced off in court over who was right about what the will meant.
The first court to deal with the case was the BC Supreme Court, which is not the highest court in BC but is actually BC’s superior trial court. The BC Supreme Court judge considered the will to be unambiguous, and interpreted it to mean that the executor was to gather the assets, pay the estate’s debts, and then divide the residue into equal shares based on the number of Mr. Jack’s children “then alive.” In other words, alive when distribution of the residue took place. The judge also thought the words “then alive” had been included order to override the usual rule that the terms of a will take effect at the will-maker’s death.
In other words, T won in the BC Supreme Court and would have taken everything, including the ranch. Except that his mother appealed to the BC Court of Appeal, which is BC’s highest court.
The Court of Appeal held the first court’s interpretation was wrong. It said the first court should have applied what is known as the “presumption of early vesting.” This is a rule of interpretation that beneficiaries become entitled to receive what the will gives them at the time of the will-maker’s death unless the terms of the will show a clear intention by the will-maker to override the rule, or the gift depends on some fact personal to the beneficiary, like reaching a certain age. The Court of Appeal did not consider the words used in the Jack will were clear enough to override the rule, and considered it unlikely that Mr. Jack had intended to postpone his surviving children from becoming entitled to their shares of the residue until the rest of the estate had been fully administered.
The presumption of early vesting applies to class gifts as well as other gifts under a will. If it is possible to determine the size of the class at the death of the will-maker, that is generally when the class is considered to close. The Court of Appeal declared the class under the residuary clause in the Jack will closed on the death of Mr. Jack, reversed the first court’s decision, and declared J’s estate to be entitled to a half-interest in the residue.
T would have to share the ranch (and any other residue) after all with his mother representing his deceased brother’s estate. So ended the Jack family’s internal class war.
The BC Court of Appeal decision in Lewis v Jack, 2026 BCCA 18 was handed down on 21 January 2026.
