210 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
nant to the gift. (See the reference to Gray’s Restraints on Alienation of Property43
in Re Walker.44) The same reasoning would apply to a conditional fee.
CONDITIONAL FEE SIMPLES – INTERPRETATION
What about the holder of a conditional fee simple? What if the conditional
fee simple to Terra had been gifted in a will by A (the fee simple owner) to
B if and only if Terra were used as a farm? B dies, Terra still being used as a
farm. B’s will provides for the conditional fee simple to go to C. I think C
would be entitled to the gift of Terra.
OTHER CONSIDERATIONS
There are other considerations when making a gift of land by will. Under s. 10
of WESA, if the beneficiary of the gift of land does not survive a deceased
person by five days, or a longer period provided in an instrument, the beneficiary
is conclusively deemed to have died before the deceased person.
Have you made a previous disposition of Terra? If so, there is nothing to
give. Section 51 of WESA provides that “a gift of property that the will-maker
does not own is void”.45
What if the gift of land is to a witness to the will? Section 43 of WESA would
apply and the gift would be void, unless a court declares otherwise under
s. 43(4). Under s. 43(3), the remainder of the will would not be affected.
Finally, how do the “Variation of Wills” provisions in Part 4, Division 6 of
WESA apply to a gift of land in a will? A dies, leaving almost nothing to A’s
spouse and children, but makes a gift of Terra to B, a friend. The variation
provisions might apply, and if so, the gift to B would be subject to an order
made under WESA.46
I note that many of these issues will arise in an inter vivos disposition.
The obvious difference is that, depending on circumstances, the issue may
be capable of being remedied if discovered prior to the death of the
donor. Not so with the gift of land by way of will. “Death ?o baby” does not
allow for subsequent repair.
Part II of this article, to be published in a future issue of the Advocate, will
deal with inter vivos gifts of land, and promises further paths to wander.
ENDNOTES
1. See CED (4th), Gifts, I.2 at para 2 (“a gift inter vivos
is a gratuitous transfer of property from the owner to
another, with the full intention on the part of both donor
and donee that the thing shall not be returned to the
donor but shall be retained as the donee’s own”).
2. MacLeod v Montgomery Estate, 1979 ABCA 339.
3. See Snelling v Snelling, 2019 BCSC 730 (where the
court found a lack of intention to make a gift of land
by the father to his three sons).
4. See Johnstone v Johnstone (1913), 12 DLR 537 (Ont
CA) (“to constitute a gift, acceptance, as well as
giving, is a necessary requisite. If either is absent,
there is no gift”).
5. Bruce Ziff, Principles of Property Law, 6th ed
(Toronto: Carswell, 2014) at 160–61.
6. Even if that were possible (which it is not), s 15(1) of
the Property Law Act, RSBC 1996, c 377 PLA would
apply (discussed in the next paragraph of this article).