Duhaime's Law Dictionary


Per Capita Definition:

Latin: by the head.

Related Terms: Per Stirpes, Issue Estoppel, Issue

The proposed distribution of an estate of property to surviving specified beneficiaries only and not, in the event of pre-death of a 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 available to take at the time of distribution and not to flow down to the heirs of pre-deceased beneficiaries but, rather, to accrue to the accounts of those who are alive as of the date of distribution. As such, a per capita entitlement is not based on representation (as a per stirpes right is) but, rather, on direct entitlement.

In a per capita distribution, where stated beneficiaries have pre-deceased the donor, the estate in limited as to its course down through heirs (see also extensive comments regarding a per capita distribution in the Legal Definition of Per Stirpes).

per capitaOften contrasted with a distribution stated to be per stirpes in which the share of pre-deceased beneficiary does flow to that pre-deceased's heirs.

In the 2008 edition of the BC Law Society's Practice Materials: Estates, the authors 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 beneficiary'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.

Lawyer Carmen Theriault wrote, in her oft-cited article:

"The phrase per stirpes and per capita signify how an estate is to be distributed among a class of beneficiaries. Per capita indicates that the estate is to be distributed by head - meaning that one share is to be paid to each beneficiary in the class specified who is alive at the date of distribution.

"Under a per stirpes distribution, the share of a beneficiary who dies before the date of distribution goes to increase the shares payable to the other beneficiaries who are alive at the date of distribution. It does not pass to the descendants of the (pre)deceased beneficiary....

"The phrase per stirpes signifies that the estate is to be distributed by roots or stocks meaning that one share is to be paid to a representative of each family line of descendants. In simplified terms, under a stirpital division, a class of beneficiaries will take the share that their (pre)deceased ancestor would have been entitled to receive if she or he had been living. They will do so by right of representation."

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., Practice Materials: Estates (Vancouver: Law Society of British Colukbia, 2008), page 33.
  • Theriault, Carmen, Hamel Estate v Hamel: Should Will Drafters Abandon the Use of Issue Per Stirpes?, 18 ETR 127 (1998)

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