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VOL. 80 PART 2 MARCH 2022
7. AJ McClean & KB Farquhar, Cases and Text on Property
, 5th ed (further revised). Professor Dennis
Pavlich, Peter A Allard School of Law, notes that
when the pieces of earth were handed over, the
transferor said: “Enter upon the land and may God
bring you joy.”
8. PLA, supra note 6, s 15.
9. Ibid, s 16.
10. Land Title Act, RSBC 1996, c 250, s 185 LTA.
11. If you are morbidly curious, see Sen v Headley,
1991 2 All ER 636 (CA).
12. I note, for first-year Property Law students, that they
do not study gifts by will (although gifts by will are
mentioned in the cases). This subject is reserved for
the upper-year Succession course. However, many of
the other issues covered in first-year Property Law
(such as future interests) are relevant to gifts by will
as well as inter vivos gifts, so I have included the discussion
here.
13. ee cummings, Complete Poems, 1904–1962 (New
York: Liveright, 1991) at 604. I note that later in the
poem, cummings also states that “Death is strictly scientific
& artificial & evil & legal”.
14. As part of the process, see Wills, Estates and Succession
Act, SBC 2009, c 13, s 102(2) WESA,
whereby the estate of a deceased person vests in the
person’s personal representative when the personal
representative assumes or is appointed to that office.
15. LTA, supra note 10, s 180(3).
16. Ibid, s 180(4).
17. In light of the reasoning in Dukart v Corporation of
the District of Surrey, 1978 2 SCR 1039, you may
wish to challenge that statement.
18. LTA, supra note 10, s 172.
19. Saunders v Vautier, (1841) 4 Beav 115.
20. WESA, supra note 14.
21. Ibid, s 45.
22. LTA, supra note 10, s 73(1).
23. International Paper Industries Ltd v Top Line Industries
Inc, 1996 CanLII 3340 (BCCA) International Paper.
24. Ibid at para 35.
25. LTA, supra note 10, s 73.1(1)(a).
26. Robert Megarry & HWR Wade, The Law of Real
Property, 8th ed (London: Sweet & Maxwell, 2012)
at 63.
27. See ibid at 63 (“thus, a grant to ‘A until the death
of B’ gave A an estate pur autre vie”).
28. Ibid at 64.
29. Ibid.
30. Ibid.
31. This is to be distinguished from a condition precedent
relating to the beginning of the estate (e.g., “To A in
fee simple when he reaches 21”: ibid).
32. In fact, the distinction has been called “little short of
disgraceful to our jurisprudence”: ibid at 65.
33. Ibid at 65. Note also that as a condition subsequent
gives rise to a right of forfeiture, the courts construe
the condition subsequent strictly, and require precise
wording.
34. Perpetuity Act, RSBC 1996, c 358, s 23.
35. If the limitation in the determinable fee is void (e.g.,
contrary to public policy), the whole gift fails and
therefore the determinable fee would itself fail and
obviously not be “available” to be gifted in a will:
Megarry & Wade, supra note 26 at 70.
36. Re Robson, 1916 1 Ch 116.
37. Re Robson has the effect of converting all legal interests
under a will that were not created out of equitable
estates, or were not already subject to a trust,
into equitable interests. See Harry D Anger & John D
Honsberger, Law of Real Property, 2d ed (Aurora:
Canada Law Book, 1985) at 432 (“the issue seems
not to have been dealt with by the Canadian courts.
However, if it should arise, Re Robson should, it is
submitted, be followed”).
38. See ibid at 126–27, 432–34.
39. The rules of construction for a grant in a will are
much broader than those rules for an inter vivos
grant. In Re McGarry, 1950 1 DLR 715 (NSSC),
the court stated: “In the case of deeds, it is the form
of grant that establishes the interest conveyed. In
construing wills, the entire document and the relevant
surrounding circumstances are looked at to determine
the interest intended to be granted”.
40. I note that a similar restriction, but phrased as a condition
subsequent, was considered in Sifton v Sifton,
1938 AC 656 Sifton. A condition subsequent,
which gives rise to a right of forfeiture, is construed
strictly and requires precise wording or is otherwise
void: Megarry & Wade, supra note 26 at 65–66.
Perhaps this residency “determining event” would
not be considered void per Sifton, as it is not
expressed as a condition subsequent.
41. In this regard, I note s 41(3) of WESA, which provides
that “a gift in a will, subject to the terms of the
gift, gives to the recipient of the gift every legal or
equitable interest in the property that the will-maker
had the legal capacity to give”. The words “subject to
the terms of the gift” may be applied to restrict the gift
to a life estate.
42. See the discussion in Megarry & Wade, supra note
26 at 69–70 regarding a determinable fee to X until
he becomes bankrupt: Re Leach, 1912 2 Ch 422 at
429 Leach. If X died before becoming bankrupt, the
determinable fee would become absolute. In the residency
example I have given, the “ceasing to be a
resident” and “death” would presumably be simultaneous,
but is that sufficient to distinguish Leach? I
note that if bankruptcy were a condition, not a determining
event, it would be void as contravening a
course of devolution prescribed at law. See Megarry
& Wade, supra note 26 at 68.
43. John C Gray, Restraints on the Alienation of Property
, 2nd ed (Boston: Boston Book, 1895) at 9–10.
44. Re Walker (1923), 56 OLR 517 (CA).
45. WESA, supra note 14, s 51(1)(a).
46. Ibid, s 60. See also the prohibition in s 69 on registration
of title to property distributed by gift in a will
until the passage of a statutory time period.