352 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
tive for want of delivery. There was no evidence that the deed was not to
take effect until death, and “the act itself, that is, the transfer of the property
to Donald Ross, was complete and immediately operative, even
although he was not aware of it”.15 I also note that the court found that Mrs.
Lynds “treated it as a valuable document, as evidenced by its being found
in her purse following her death with other important papers”16—just like a
safety deposit box, which is why I still wonder why counsel for the disappointed
did not make more of the purse storage. I do not think Charlotte
Lynds, while alive, was “in the mood” to give the deed to her grandson.17
What if the document in the purse had not been a deed but some other
instrument purporting to gift the land? While the Property Law Act (“PLA”)
requires an instrument expressed to transfer the land in order to transfer
land,18 s. 16 of the PLA provides that such an instrument need not be executed
under seal.19 I do not think that means that a Form A is deemed to be
under seal (i.e., a statutory deed). I think the section merely dispenses with
the requirement for a seal on land transfer documents. Therefore, the deed
cases may be of no assistance for an instrument not under seal. As well,
deeds no longer carry the cultural significance of former days.
DETERMINABLE FEES AND CONDITIONAL FEES – INTER VIVOS GIFT
Can you make an inter vivos gift of a determinable fee or conditional fee?
Yes. I think the answer is the same as in the case of a testamentary gift of
these estates: the key feature of a fee simple is its alienability. Section 9 of
the Law and Equity Act may assist:
Subject to this Act, the court and every judge of it must recognize and give
effect to all legal claims and demands and all estates, titles, rights, duties,
obligations and liabilities existing by the common law or by any custom or
created by any statute, in the same manner as they would have been recognized
and given effect to in the court if this Act had not been enacted.20
Section 8 of the PLA would be of little assistance because the section
deals with rights of entry and, possibly, possibilities of reverter.
Some of you may be wondering where you might ever see determinable
or conditional fees today. As part of the modern treaty process in British
Columbia, determinable fees were used in a small number of transactions
to transfer lands to a First Nation–owned corporation prior to the effective
date of the final agreement for the First Nation, so that the First Nation
could get the benefit of the lands sooner than the effective date. On the
effective date, notice of the determining event (being the effective date)
was filed at the LTO, followed by the filing of documentation confirming fee
simple title for those lands in the name of the First Nation.