A descendant's right to take a deceased beneficiary's share where that beneficiary died before the testator.
A "per stirpes distribution of my estate in equal shares to my children Bob and Sue" means that if Bob dies before me, his children can share what would of been his share had he of survived me.
In a per stirpes distribution, a stated beneficiary's share, where that beneficiary dies before the person leaving the estate, that deceased beneficiary's share flows down through his descendants or next of kin.
A per capita would mean the oposite: Bob and Sue would have to survive me to qualify for their share, which does not flow down to their descendants in the event the beneficiary dies before the testator.
In Hegedus Estate v. Paul, Justice Veit of the Alberta Court explained:
"Practically, what that expression means is that the descendants of the identified beneficiary take that beneficiary's share.
"So, for example, if the testatrix gives her estate to her only two children, per stirpes, and one of those children has 4 children, and one of them has only 1 child, and both the testatrix's children die before she does, the estate will be divided in two parts, and the 4 grandchildren will share one of those parts and the other grandchild will inherit the other half."
Or in Re Clark Estate, a 1994 case out of British Columbia, Justice Tysoe adopted these words:
"Per capita; Per stirpes (by head; by stocks).
"When property is given to the descendants or relations of two or more persons, the question frequently arises whether the donees are to take per stirpes, that is, as representatives of their respective ancestors or relations, or per capita, that is, whether they together form one class each member of which is to take an equal share.
"The question chiefly arises in gifts to descendants. If a testator leaves property to his issue and dies leaving children who are living and grandchildren who are the issue of deceased children, then the property is divided per capita, that is each child and grandchild takes an equal share of the whole.
"But if there is a gift to two or more persons, with a substitutional gift to the children of such of them as shall die before the gift takes effect, then the distribution takes place per stirpes.
"Thus, if there were three original donees, A, B and C, and B has died leaving three children, and C has died leaving two children, the property is divided into three parts, one going to A, another to B;s three children, and the third to C's two children."
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