Fee Simple or Not! Flashcards
X grants Blackacre to A and her heirs.
Common Law: X has created a fee simple “and her heirs”
ON: X has created a fee simple “and her heirs” is allowed under s. 5(2)
NB: X has created a fee simple. The NB statute adopted the same first two provisions of the Ontario statute.
X grants Blackacre to A in fee simple
Common Law: X has create a legal life estate. Cannot use “in fee simple”.
ON: X has created a fee simple. As per s. 5(2) “in fee simple” is sufficient to create a fee simple.
NB:X has created a fee simple similar to the ON statute as NB adopted the first two provisions.
X to A forever
Common Law: X has created a life estate as the words of limitation are “forever”
ON: X has created a fee simple because of s. 5(2) of the Conveyancing Act. If “and his heirs” are not used a fee simple is still presumed. No contrary statement.
NB: X has created a legal life estate, as neither “and his heirs” or “in fee simple” are presented
X to A.
Common Law: X has created a life estate as that was the presumption at common law.
ON: X has created a fee simple because of s. 5(2) of the Conveyancing Act. If “and his heirs” are not used a fee simple is still presumed. No contrary statement.
NB: X has created a legal life estate, as neither “ and his heirs” or “in fee simple” are presented.
X grants Blackacre to A, and then to B and his heirs.
Common Law: X has created a life estate of successive interests.
ON: X has created a life estate because of 5(3) and (4). There is a contrary interpretation to B in this scenario.
NB: X has created a life estate.
X to A in a devise.
Common Law: X has devised a life estate as a testamentary gift to A.
ON: X has devised a fee simple as a testamentary gift to A.
NB: X has devised a fee simple as a testamentary gift to A. (Same statute as Ontario.)
X devises Blackacre to A , and then to B and his heirs.
Common law: X has devised a life estate as a testamentary gift to A, and has given a fee simple to B.
Statute likely would say that there is a contrary interpretation in this situation so A has a life estate, and B has a fee simple.
X devises Blackacre to A and his heirs. (What if A dies before X?)
X has created a fee simple in both common law and statute. If A dies before X, A gets nothing because A is the word of purchase and they are not alive to take the interest so it lapses.
In a will, a testator can use words of substitution:
X devises Blackacre to A or his heirs.
“Or his heirs” will make it (1) a fee simple and (2) have the intent that if A predeceases X it will go to A’s heirs (or is a word of substitution)
