Per Stirpes

Latin: an entitlement to participate in the distribution of property, such as an estate, that flows down to the named beneficiary's next heir if he or she is otherwise unable to take his or her share.

By branch, class or stock.

Williams borrows from Book 2 of William Blackstone and offers this definition:

"The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would have done, had he been living."

Used in wills to provide a distribution that does not go to a particular person but to a person who stands as a representative of a branch of the family so that if a gift is interrupted by the pre-death of a beneficiary, that share flows down through the family branch, to descendants of the beneficiary.

Osborn descibes a per stirpes distribution as follows:

"... if (the estate) is divided equally amongst the surviving children ... and the descendants of the deceased children colllectively so that the descendants of a deceased child take that child's share between them."

A more contemporary description (2008, Low & Jenkins):

"Per stirpes (by the root) is used to reflect a scheme of distribution that recognizes each line of lineal descendants of a named beneficiary as a root.

"If the (per stirpes) beneficiary predeceases the testator, his or her share of the estate passes on to his or her lineal descendants (i.e. issue)."

Per stirpes, like per capita, are terms borrowed from Roman law and its successor, the civil law, and are found and described in Justinian's Institutes although the mechanism of a per stirpes distribution was known to the common law (see below).

A per stirpes distribution is usually contrasted with a per capita distribution.

A per stirpes distribution allows the share going to the pre-deceased beneficiary to continue to flow down through the family branch, class or group the beneficiary represented - down to the nexts-of-kin. The nexts-of-kin claim a share in the estate in the right of the pre-deceased who would of been entitled to take had he or she survived the testator.

In writing a will, a testator has to decide whether he or she wishes to divide the estate between only those children alive at the testator’s death, or if he or she wishes to benefit the branch - including the children of any pre-deceased child (grandchildren).

A per stirpes distribution is the common choice and ensures that the grand-children of the testator share equally in the share that his or her deceased parent would have received if they had of survived the testator.

But in most cases, in the absence of wording as to what to do to a gift to a named beneficiary who dies before the testator, the court will assume a per capita distribution even though (Williams):

"... the common law knows no other rule of succession but that per stirpes only."

The use of the word is somewhat controversial. For one thing, the case law has not been consistent in treatment of per stirpes cases that have come before it. For another, a court is always seeking first and foremost to give life to the intentions of the testator however awkward those intentions may be written. Worse, words right after or preceding the words per stirpes can divest the distribution of its intended effect and result in a per capita distribution even though the words per stirpes were used in the will.

REFERENCES:

• Duhaime, Lloyd, Legal Definition of Per Capita
• Duhaime, Lloyd, Legal Definition of Stirpes
• Low, H., and Jenkins, K., Pratice Materials: Estates (Vancouver: Law Society of British Colukbia, 2008), page 33.