Class Gifts Flashcards
Why do them?
- Convenient way to give gifts in a will to a group of people
- Allow for the number of beneficiaries to organically grow through testators lifetime (don’t have to keep changing will)
Member of a class pre-deceasing
NOT subject to lapse. If you successfully argue it is a class gift and member of class pre-deceases their share is re-absorbed by the rest of the class
What about anti-lapse and class gifts?
In NB our anti-lapse clauses apply to class gifts (if gift to preferred class it is not re-absorbed but s.32 applies)
When is it considered a class gift
Made to a class of persons, discernible, not individually named or numbered. When testator dies all people WHO ARE LIVING who match the description of the class get an equal share
What happens if all members of a class pre-decease
If everyone in artificial class dies it will lapse—if no possibility of class members taking it it will lapse
Substitutionary provisions built under class gifts
- Class gift by nature provides inferred substitution scheme
- In NB anti-lapse
- Can make a class gift but write “if any of my children pre-decease me then to their children per stirpes”
Where a substitutionary provision is a problem
When would be class member dead before writing of will
To be a member you have to be alive after will was written
(have to meet condition to be in the class- can’t be dead when it starts)
Re Grasset
Facts: gift to brothers and sisters (only one sister alive and substitution clause to their children)
Ratio: Court looked at being dead before will written. Look at actual wording and its a matter of perception, did they mean to make a gift? plural word, meant her in it.
Identifying whether something is a class gift
(1) Words clearly indicate class
2) When it appears testator intended class gift (even when lots of stuff pointing to it not being class gift
Words that clearly indicate class
Identify unnamed and unnumbered group of people (ex: my grandchildren)
What to consider when looking at context/ wording to determine class gift even if the people are named?
Are all of these gifts the same? Any conditional additions on the gifts to one of the individuals as there are on the others?
-If one has a condition the others don’t not a class gift (class gifts meant to vest in interest at the same time)
Re Snider
Facts: Everything to go to son Dorwin’s two children if living. Only one alive if he died & no residue clause so would go to intestacy. Class gift or individual? (class kid gets everything if individual half lapses and intestacy)
Ratio: class gift, good example of where intention plays in. Where a gift is to a number of persons who are united/connected by some common tie and you can see the testator was looking to the body as a whole rather than to the individual members. And you can see that he intended that if one or more died in his lifetime and the rest would take. Then it should be followed
Classes can be made up of
Anybody. Not just natural groups.
Artificial classes
Different people identified to form one group or a group of people who are not related (ex: to co-workers)
Kingsbury v Walter
Facts: To Elizabeth Jane Fowlet and the child or children of of my sister who shall attain the age of 21. EJF didn’t have the condition, prima facie not class. She was really close to 21 when will written. EJF died 2 years before testator.
Ratio: If court wants it can find anything to be a class gift. Close to 21 and referred to nieces with EJF in other parts.
Description by number
Ex: to my 3 children
When you name or number you take it out of class gift, singling out children and individualizing them
Re Burgess
Facts: “to the children (boy and girl) of William. William had 6 when she died
Ratio: If there are more of the class than specified the court will try to discern intention. if court can it will try to discover who is meant from both the wording of the will and extrinsic evidence. Deemed a class gift.
Re Hyslop
See what the will says—see if you can find sufficient express language to give you a directive into whether the class closes. IF you can see when the testator intended don’t go to class closing rule.
When the class closed determined
Who is eligible to receive a vested interest
When do class closing rules apply?
When no clear intention by testator
Intention of the court for closing
Close as quickly as possible
Basic rule with class gifts
If a class member pre-deceases testator then the gift never vests
ONT- always re-absorbed
NB- Anti-lapse
Class closing rules for immediate unqualified gifts to a class
Absent contrary intention closes on death of testator. Class only available to members alive when testator dies (fetus too)
Natural closing of the class
If no members alive when testator dies but there is a possibility for them to be born the class will close naturally (when no longer possible for new members to exist)
Vesting implications for immediate unqualified gifts
If at least one member is alive at T’s death, interest vests immediately
What about vesting implications for natural closing with immediate unqualified gifts
Interest vest as soon as they come into existence. Disposition only takes place after class closes
What about vesting implications for natural closing with immediate unqualified gifts if you met the condition but then you die
Goes to your estate
Immediate qualified gifts
If there are members of class who have satisfied the condition when testator dies the class closes on testator death. Everyone alive is still able to qualify if they haven’t met the condition
Immediate qualified gifts if no one meets condition when testator dies
Class remains open until someone meets the condition
Vesting with immediate qualified gifts
- Don’t vest if you don’t meet condition- if does not vest reabsorbed
- Anti-lapse can’t apply if you don’t meet the condition
What if beneficiary pre-deceases testator (immediate qualified)
Ex: Child 1, 25 dies, rest under 21
- If only they met the condition the class remains open (someone needs to survive testator and meet condition to close the class)
- If meet condition and pre-decease, subject to anti-lapse
What if don’t meet condition and pre-decease
re-absorbes
Postponed absolute gifts
Gifts without condition but postponed (ex: trust fund or remainder people)
Ex: to A for life then to children of X
Ex: to A for 10 years and then to children of X
Children of X don’t need to do anything but postponed
Prima facie rule for closing postponed absolute gifts
Gifts close on death or life tenant or upon the accumulation period of a trust
What if no one born before time up for postponed absolute?
Naturally occurring class
Vesting for postponed absolute?
Any class member that survives the testator will have their share vest- if not born when testator dies but lives, have survived -if one dies before time up their share vests with their estate
Postponed qualified gifts to a class
Class closes when postponement ends and upon a member of a class fulfilling condition
Anti lapse
does not apply when they do not pre-decease but die before meeting the condition
Charlesworth estate
Immediate unqualified gift
Absent contrary intention closes on death of testator, no contrary intention here.
Latta v Lowery
Life estate and then to her children
All 8 children class members and the 3 that pre-deceased life estate their estates get it
Re Edmonds Wills Trust
Postponed qualified gifts
Ratio: terms whenever born were taken as a contrary intention- rather than closing when condition met natural closing
Pseudo class gifts
Gifts to each member of a class. Don’t behave like class gifts just use class gifts to determine who.
Ex: to each niece $1000 each
Closing rule for pseudo gifts
Absent contrary intention class closes on the date of the testators death, period. Doesn’t matter if theres postponement
What if no one meets the class for pseudo at T’s death
Class still closes and gift lapses
Vesting with pseudo gifts
- Where beneficiary pre-deceases T, not re-absorbed into class- lapses or anti-lapse applies
- HOWEVER if someone pre-deceases and doesn’t meet condition, lapses and no anti-lapse
Re Belleville Westminster Bank Ltd
No contrary intention in will so class closes at death of testator.
