Fee Simple Flashcards
Property Law Act RSBC 1996
S19
- In the transfer of an estate in fee simple, it is sufficient to use the words “in fee simple” without the words “and his heirs”
- A transfer of land to a person without words limiting the interest transferred or to a corporation sole by his or her corporate designation without the words “successors” passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer unless expressly provides that a lesser estate or particular interests is being transferred
- Voluntary transfer need not be expressed to be for the use or benefit of the transferee to prevent a resulting trust
- Subsections 1 and 2 do not prevent an instrument from operating by way of estoppel
WIlls Estates and Succession Act (March 31, 2014)
s41 (3)
S41 (3) A gift in will (a) takes effect according to its terms (b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the willmaker had the legal capacity to give.
WIlls Estates and Succession Act (March 31, 2014) s46
S46 (1) If a gift in will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention in the will, be distributed according to the following priorities:
To the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the willmaker or for any other reason
If the beneficiary was the brother, sister, or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will]
To the surviving residuary beneficiaries if any, named in the will, in proportion to their interests
(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (1) applies whether the beneficiary’s death occurs before or after the will is made.
RE Ottewell (SCC, 1969)
Frank, in his will, devised to his brother Fred his property “to hold unto him, his heirs, executors and administrators absolutely and forever”
— Surrounding facts to will only relevant if ambiguous, and distinguish words of limitation from words of purchase
Court decided words of limitation and not words of substitution (i.e. not words of purchase as daughter was claiming).
Frank’s property was only devised to Fred (and not to Fred’s heirs) and since Fred was dead, Frank effectively died intestate. Property should be divided amongst all of next of kin.
Dissent: Since don’t have to use words of limitation, the quoted words above don’t have to be given the usual technical meaning (i.e. “and his heirs” technically has meant words of limitation, but they don’t have to here). There are 2 assumptions when interpreting wills:
i) Presume against intestacy
ii) Presume every word has a meaning
Dissent therefore concludes quoted words are words of substitution
Smith Estate 2010
Smith estate 2010: latest case in BC giving us guidance as to how to interpret a will. Sets out a few key points.
- Look at language of the will when read as a whole. If the language is clear then the language governs.
- If the language is not clear and intent cannot be found from language itself, you can look to the surrounding circumstances that were known to the will maker at the time they made the will. Facts and circumstances must be such as to be reasonably expected to influence the willmaker
- Re- read the will as a whole considering the surrounding circumstances, try to find intent of the willmaker.
Key difference between deed and will:
(smith estate 2010)
Will you have to look at the WHOLE document to find the intent of the will maker (otherwise known as testator/testatrix).
With an Inter Vivos deed, the key part of a deed is a granting clause “i hereby grant”.
