When preparing a will in Ontario, one small clause can completely change how your estate is distributed. Two of the most commonly misunderstood terms are per stirpes and per capita โ and choosing the wrong one can unintentionally disinherit children or grandchildren.
If you are creating or updating a will in Toronto or the Greater Toronto Area, understanding the difference between these two estate-planning concepts is essential.
What Does โPer Capitaโ Mean in Ontario Estate Planning?
Per capita means โby the head.โ Under a per capita distribution, your estate is divided equally among surviving beneficiaries only.
If a named beneficiary dies before you, their share does not pass to their children. Instead, it is redistributed among the remaining living beneficiaries.
Toronto Example โ Per Capita Distribution
You have three children:
โข Child A
โข Child B
โข Child C
If your will leaves your estate to your children per capita and Child C passes away before you, only Child A and Child B inherit. Each would receive 50% of the estate, and Child Cโs children would receive nothing.
This result often surprises families and can create conflict โ especially in blended families or where grandchildren were expected to inherit.
What Does โPer Stirpesโ Mean Under Ontario Law?
Per stirpes means โby the branch.โ This structure ensures that each family line is preserved.
If a beneficiary dies before you, their share flows down to their descendants (children or grandchildren), rather than being redistributed to surviving beneficiaries.
Toronto Example โ Per Stirpes Distribution
Using the same family:
โข Child A
โข Child B
โข Child C (deceased, with two children)
Under a per stirpes clause:
โข Child A receives โ
โข Child B receives โ
โข Child Cโs two children split โ
equally
This approach is often preferred by Toronto families who want to protect grandchildren or ensure fairness across generations.
Why This Matters So Much for Toronto Families
In a city like Toronto, estates often involve:
โข High-value real estate
โข Blended families
โข Second marriages
โข Adult children with their own children
A poorly drafted will can unintentionally:
โข Disinherit grandchildren
โข Cause litigation under Ontarioโs Succession Law Reform Act
โข Create tax and administration issues
โข Trigger family disputes that delay estate distribution
Choosing between per stirpes and per capita is not a โstandard clauseโ โ it must reflect your specific family structure and intentions.
Which Option Is Right for Your Will?
There is no universal answer. In Ontario:
โข Per stirpes is often appropriate where you want family lines preserved
โข Per capita may make sense in limited situations where equal distribution among surviving beneficiaries is intentional
The key is that the language must be clear, precise, and legally enforceable.
Talk to a Toronto Estate Planning Lawyer Before Finalizing Your Will
Online wills and generic templates frequently misuse or oversimplify per stirpes and per capita clauses. A single sentence can determine whether hundreds of thousands โ or millions โ of dollars go where you intended.
At Capulli Law LLP, we regularly assist Toronto and GTA clients with:
โข Wills and estate planning
โข Updating outdated wills
โข Estate planning for blended families
โข Protecting children and grandchildren
โข Avoiding future estate litigation
If you already have a will, it may be worth reviewing it to confirm the distribution clauses still reflect your wishes.