Per Capita

Latin: by the head. The proposed distribution of an estate of property to surving specified beneficiaries only and not, in the event of pre-death of the beneficiary, to the heirs of the pre-deceased beneficiary.

Distribution of an estate equally (or in some other specified proportion or share) only amongst those stated to be entitled to it and avauilable to take at the time of distribution.

In the 2008 edition of the BC Law Society's Practice Materials: Estates, the authorsd write:

"Per capita (by the head) is used to reflect a scheme of distribution where the beneficiaries must be alive at the time of the death of the testator in order to take their share of the estate.

"If any of the beneficiaries predeceases the testator, that deceased benificiary's share passes to the other beneficiaries who are living at the time of the testator's death and does not fall into the estate of the deceased beneficiary and does not pass into the intestate heirs or wills beneficiaries of the deceased beneficiary."

Per capita distribution is often distinguished from per stirpes distribution, the latter allowing a share of an estate to flow down to the pre-deceased beneficiary's next of kin.

Per capita, like per stirpes, is a creation of Roman law and its successor, the civil law, although it is now a term of the art for common law lawyers who draft wills and other estate documents.

REFERENCES:

• Duhaime, Lloyd, Legal Definition of Per Stirpes
• Duhaime, Lloyd, Legal Definition of Stirpes
• Lau v Mak Estate 10 ETR 3d 152 (Ontario, 2004)
• Low, H., and Jenkins, K., Pratice Materials: Estates (Vancouver: Law Society of British Colukbia, 2008), page 33.