19

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.

Community
  • 1
FlanMan
  • 1,093
  • 1
  • 10
  • 17
  • 5
    That’s why you hire a lawyer for your will. – gnasher729 Apr 07 '23 at 16:08
  • 11
    I was half expecting this to be about time-dilation, e.g. if the first of two twins became an astronaut and became younger. – Nat Apr 08 '23 at 05:09
  • 1
    Where is the legal jurisdiction of the will? Would not their birth times be translated to "will local time"? – Kirt Apr 08 '23 at 18:54
  • @Kirt Many things are possible. Fact is that if Charlie’s rich enough, then a substantial amount of Charlie’s money may be spent on a lawsuit. Getting a lawyer to check the will would have been an awful lot cheaper. – gnasher729 Apr 08 '23 at 22:42
  • @gnasher729: This is why, IMHO, wills should basically never contain "clever" provisions. It does not matter how clever you are, reality will conspire to frustrate your wishes after you have passed. For the vast majority of people, a will should designate money to specific (named) people or preexisting (i.e. not established by the will) legal entities such as trusts or charities, with few or preferably no strings attached. – Kevin Apr 09 '23 at 05:50

2 Answers2

22

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
  • 54,294
  • 5
  • 110
  • 242
  • 5
    Is exact time of birth taken into account for such matters, legally? Most documentation will only show date of birth, not time of birth. Time of birth is often not very precise either way (besides, there's usually no lawyer/notary present at the moment of birth). – Mast Apr 08 '23 at 07:19
  • 2
    In the world of smartphones, the time of birth is considerably accurate when a newborn gets its first private social media publicity :) – Andrew T. Apr 09 '23 at 05:39
  • @AndrewT., but the law is probably already structured in a way that predates smartphones, and anyway, whilst it may be obvious who was born first in the weeks and months following the births, the evidence say 20 years later is likely to be far less clear. – Steve Apr 11 '23 at 09:00
3

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
  • 19,563
  • 2
  • 27
  • 81
  • In this case there seems to be no debate at all about the underlying facts, but about who is “the older grandchild” with these underlying facts. – gnasher729 Apr 08 '23 at 22:44
  • 1
    @gnasher729 well, that's exactly what the court will sort out, and when they're done, they'll call it a ruling of fact. (as distinct from a ruling of law, which is about interpretation of law, e.g. "the 5th Amendment doesn't allow IRS to require the taxpayer disclose the source of the income"). – Harper - Reinstate Monica Apr 09 '23 at 02:37
  • If Bob's attorney was worth his salt he'd present a slew of precedents establishing the use of local calendar dates and times of day that govern various regulations such as holidays, mandated bar closing times, age related restrictions, etc. I would challenge anyone to find a clear case where a geo-spatial frame of reference was used. – Michael Hall Apr 10 '23 at 01:32
  • @MichaelHall: Probably just about any case involving multiple time-zones. For example, usually folks who miss making a payment can't just circle the globe to a different time-zone to make that payment as though it were on-time. – Nat Apr 10 '23 at 13:53
  • @Nat, it sounds like you agree with me. In any case, I’ve had some additional help in another question making my point that legally Bob could be considered older, so the woodshed moment described in this answer may not be quite so dramatic. Wording of the will is key though… (e.g. “first born” or “oldest”?). https://law.stackexchange.com/questions/91396/are-times-zones-or-a-geo-spatial-frame-of-reference-considered-in-age-based-re/91406#91406 – Michael Hall Apr 10 '23 at 14:56
  • @MichaelHall: Yeah, I could see it being a different issue if it were a matter of "the grandchild with the largest age" rather than "the oldest grandchild". But because it is concerned with the "oldest", the issue of Bob having a larger "age" is moreso a strange happenstance for Alice to explain rather than a thing that'd matter by itself. By analogy, if Alice had 100 US-dollars while Bob had 110 Canadian-dollars, then Alice would clearly be "richer", but Bob might try to argue about who "had the most dollars". – Nat Apr 10 '23 at 15:24
  • Yes. BTW, I’m not arguing that Bob is “older”, I’m pointing out that a valid legal argument could be made. – Michael Hall Apr 10 '23 at 15:28
  • 1
    @MichaelHall: Yeah, I'd agree that could be an interesting concept to explore. I mean, as noted in the last-paragraph of the answer you linked, sometimes difficult-to-determine things may've been determined once and thereafter assumed to be factual-enough, without revisiting them every time to maintain consistency. And I guess that the concept of legal-precedents is, itself, an instance of that trick -- where tough calls might get made once, then maintained thereafter without revisiting them each time for consistency. – Nat Apr 10 '23 at 15:33
  • @MichaelHall I see your other question, but unfortunately that question has drifted off-point. In that question, the crux of the matter is enforceability: reasonable behavior for the dram shop owner or arresting officer in the dim light of a tavern where the decision needs to be made now. However here, we have broad daylight and no particular time pressure on a consequential matter which can definitely be determined using modern science. So, what will the most credible experts say? – Harper - Reinstate Monica Apr 10 '23 at 18:39
  • It has nothing to do with dim lighting. If Alice were arrested for underage drinking, in the broad daylight of a courtroom could she present her birth certificate to a magistrate and have her charges dismissed on the basis of being two hours older than her legally drinking companion? Not according to the BC law that Jen quoted in her answer. – Michael Hall Apr 10 '23 at 18:43
  • @MichaelHall Sorry I was confusing. I'm only using "dim lighting" as a metaphor for the fact that a snap decision would need to be made on the spot by barkeep and officer without full "light" of all of the facts. In fact, the laws on underage drinking cause the dim light by telling them to disregard additional info which may be true, and rely on on only certain info sources such as state ID. Thus, Alice can't sue the barkeep for a factually wrong decision. Does the definition in that anti-drinking law extend to all questions of age? You'd have to check the laws. – Harper - Reinstate Monica Apr 10 '23 at 19:58
  • Understood. And to be clear, I am not advocating at all that these sorts of drinking age arguments be made with wait staff or bouncers, only that there is some legal argument to be made that "legal age" could be different than the specific order of birth, and that an attorney ought not concede the point or fear humiliation for making that case. Otherwise I like your answer! – Michael Hall Apr 10 '23 at 21:11