THE ADVOCATE 205
VOL. 80 PART 2 MARCH 2022
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Death is the end of the line. You will not have another chance to perfect
the gift if your will does not effectively deal with the disposition of a parcel
of land. Let us call that parcel of land Terra.
The disposition can be an outright gift under the will, whereby on completion
of probate legal and equitable title is transferred to the beneficiary.14
The disposition can be by way of a trust set out in the will, whereby on completion
of probate a trustee holds the land in trust in fee simple for the beneficiary.
Alternatively, the land may be held by the trustee in trust for the
lifetime of the beneficiary. In that case the beneficiary of the gift would
have an equitable life estate in Terra. The trustee would hold legal title, or
in land title terms, the trustee would be the registered owner according to
the certificate of indefeasible title issued by the registrar. If the trustee discloses
the trust as part of registration at the LTO, the registrar must add an
endorsement in the register containing the words “in trust”.15 The trust
instrument must be filed with the registrar.16 The life estate itself would
remain “unregistered”.17 If the registration of the fee simple disclosed no
trust, the life estate could be registered as a charge under s. 172(b) of the
LTA.18 Either the trustee or some other person would be entitled to the
remainder or reversion in fee simple (future interests).
Perhaps the land is held in trust in fee simple until some event occurs,
such as the beneficiary attaining a certain age (possibly subject to the rule
in Saunders v. Vautier19). The beneficiary holds a contingent equitable fee
simple title until the event occurs. Then, on the occurrence of the event, by
a Form A from the trustee to the beneficiary, registered at the LTO, the beneficiary
obtains the vested legal registered title to the fee simple. I leave a
full discussion of gifts by way of trusts to another time. I also leave a discussion
of executory future interests to another time.
WILLS, ESTATES AND SUCCESSION ACT
To make sure that the gift of Terra is effective on death, the donor will have
to use the correct instrument: a will as defined in the Wills, Estates and Succession
Act (“WESA”).20 The will must comply with all requirements as set
out in WESA.
IS THE LAND A SEPARATE LEGAL PARCEL?
Is Terra a separate legal parcel of land? Section 45 of WESA provides that