THE ADVOCATE 209
VOL. 80 PART 2 MARCH 2022
fees, possibilities of reverter, conditional fees and rights of entry are discussed
later in this article.
DETERMINABLE FEE SIMPLES – INTERPRETATION
What if a determinable fee simple to Terra has been gifted in a will by A (the
fee simple owner) to B for so long as Terra is used as a farm? Presumably
the will would provide for the disposition by A of the possibility of reverter
(if not specifically, then as part of the residue). If it does not, the possibility
would devolve to A’s intestate succession heirs. B dies, Terra still being used
as a farm. B’s will provides for the determinable fee simple to go to C.
C would be entitled to the gift of Terra, for so long as Terra is used as a farm.
If Terra were no longer used as a farm, the possibility of reverter would be
capable of being exercised by A’s beneficiary under A’s will or by A’s heirs.39
What if a determinable fee simple in Terra has been gifted in a will by A
(the fee simple owner) to B for so long as B is a resident of Canada?40 A’s will
provides that the possibility of reverter is gifted to D. B dies, a resident of
Canada. B’s will provides for the determinable fee simple to go to C. One
possible construction is that the ultimate determining event is really B’s
death, as B cannot be a resident after death. B’s interest continues while B
is still alive and a Canadian resident. In other words, B was gifted a life
estate, not a determinable fee simple, that may terminate early if B is no
longer a resident in Canada. In that case, the possibility of reverter would
be capable of being exercised by D.41 On B’s death, if the possibility of
reverter had not been exercised, then presumably a court would conclude
that there was a reversionary interest in D.
An alternative construction could be that if B is a resident of Canada at
B’s death, then C would take Terra free of the determining event.42 That
could be the case if the court concluded that A wanted to keep B in Canada,
but did not care about residency after B’s death.
As the grant by A to B is in a will, the court may interpret the will looking
at surrounding circumstances as appropriate. It might conclude that as long
as the current holder is in compliance with the determining event, the determinable
fee simple can be the subject of a gift by B under B’s will. It may
well conclude that it was not in the spirit of the disposition that the determinable
fee simple would “automatically” terminate on B’s death; otherwise,
the maker of the will would have left a life estate to B. The determining event
would continue to bind the beneficiary of a gift of Terra by B, so that any
holder of the determinable fee simple must be a Canadian resident.
What if the determining event were that the donee owned the fee simple
until the donee alienated or attempted to alienate the fee simple? Such a determining
event would most likely be void as a restraint on alienation and repug-