Life Estate Flashcards
Repugnancy
if give absolutely, cannot control it’s destiny – intention in wills, formal in deeds
Re Walker (1925)
Gave property to wife but tried to say what happens to it when she dies. There was absolute gift - widow gets fee simple.
Sets out the basic principles (there are exceptions): repugnancy –cant control destiny after absolute gift - either
i) The gift is dominant and the gift over repugnant
ii) The gift-over is dominant, so the first named gift only gets a life estate
iii) Middle ground: only a life estate is given (similar to in ii) , but it may be encroached upon (e.g. sold) during the lifetime of the life-tenant, with whatever remains as a gift over – as in Re Johnson 1912
Note if talking about personalty you must think about how youre gonna let it devolve in a successive grant situation (like fraser, swan)
**Predominant intent of testator should be carried out (ie looking at the whole will for intent)
Re Johnson 1912:
“Property may be given for life with a power to expend capital, followed by a valid gift over of the unexpended part”
Re Richer (1919) (Ont App. Div.)
Deceased’s will gave his widow the “free use” (like a fee simple but has to be read in context of particular will) of all his property for her lifetime, with the balance “that will remain unspent … if any” on her death going to their children.
the word “unspent” certainly allows the widow to spend monies and to use up goods and chattels, but court said the word is inapplicable to land i.e. land cannot be “spent”. “For her lifetime” is express. Thus life estate to land given to widow with remainder to the children. Interpreting intention / expectation of testator.
Comment: “unspent” may not be as inappropriate to land as court suggested here – consider cutting timber, mining, etc
Re Shamas (1967 ONCA)
From relevant circumstances when the will was made, the testators property was not enough to support the wife and children before and after all reached 21, and so suggests an intention that the wife should be able to encroach on the capital as she thought fit. Hence she can also encroach on it after all children reach 21.
Ratio: Found Walker too formal (broader intention allowed here): testator’s intention should be determined from whole will and (if ambiguous) relevant circumstances when will was made “armchair of testator”.
Class note: The case is a bit critical of the walker case but the criticism is not needed. Walker was just telling you to read the whole will to see the intent, you are really looking for the predominant intent as suggested in walker. Howell loves walker.
s19 (2) of Property Law Act 1996
If creating a life estate, must say so, otherwise creating greatest interest
Waste
Any action changing nature of subject matter. Remedial action that a person who has ultimate interest can bring against someone with immediate possessory interest to deal with activities that the person is doing on the property that are impacting ultimate gift.
Legal Waste (3)
Legal waste: applied by the courts of common law.
The context of legal waste was life and remainder/ reversion
Voluntary waste - when you do something which you ought not to do (acting, doing something)
Ameliorating waste: nature of property has been changed in a way as to increase the value. (cant get damages here, but you can get an injunction in equity while its happening)
For life estates there is always the presumption that the lifeholder is responsible for voluntary waste, but the document itself can give clear intent otherwise. → “Without impeachment of waste”
Permissive waste - where someone fails to do something that they ought to have done .
Ordinarily a lifeholder is not liable for permissive waste unless stipulated by the document, but that is not always the case. Lifeholder is obligated to pay taxes otherwise has committed permissive waste (failed to do something). See mayo case.
Equitable Waste
cannot be destroying property as the person who possess it while someone else has a simultaneous interest. Does not enable “wanton destruction” → Roby castle case
Key is to look for malicious intent. “wanton destruction”.
Test/ standard, it depends on the relationship that equity has before it. Examples of relationships (City of New Westminster v Kennedy et al, 1918):
Tenants in tail after possibility of issue extinct
Tenants in common and Joint Tenants
Mortgagor and mortgagee
Tenant in fee subject to an executory devise over
Rector or vicar as regards to the rectory or glebe lands
Partners
Against a purchaser who is equity owner of the estate by contract at the suit of the vendor in the situation of an equitable mortgagee
Hiltz v Langille and Langille (1959)
Ratio: Definition of injury to successive interests flexible – must take into account the local circumstances / nature of the land (e.g. timber estate).
Legal waste: permissive (passive), voluntary (active), includes ameliorating
Waste is an action on the case to protect your interest in your future possession can be utilized against 3rd parties or life holder who makes such an interference with property that the future value of the property is affected.
City of New Westminster v Kennedy et al (1918)
Failure to pay taxes - Unconscionable/ flagrant Equitable waste
This category of equitable waste (i.e. disallowance to destroy/depreciate the subject matter) applies to other relationships where one party has possession but another has a simultaneous interest, such as tenants in common, joint tenants, mortgagor/mortgagee, tenants in fee simple subject to an executory devise over, partners, purchaser by contract awaiting to perfect title in registry (and who can enforce contract by specific performance). Note no legal right to commit voluntary waste here, so equity stops not just flagrant waste.
Vane v Lord Barnard (1716)
Decision: court of equity granted injunction against further pulling down of castle, and ordered repair.
This equitable rule is in statutory form: B.C. Law and Equity Act – s.11 Equitable waste – an instrument granting an estate for life without impeachment of waste does not give a right to commit equitable waste unless there is an express intention to the contrary
Raises the possibility that a grant can say “you can commit voluntary waste and you can totally destroy the place” – but might argue this suggests the intention of the grantor (e.g. testator) is really to give an absolute fee simple rather than a life estate, and so might argue repugnancy
Law and Equity Act 1996
S11
s11 An estate for life without impeachment of waste does not confer and is deemed not to have conferred on the tenant for life a legal right to commit equitable waste, unless an intention to confer that right expressly appears by the instrument creating the estate.
Mayo v Leitovski (1928)
life tenant is under an obligation to try to prevent forfeiture of the reversion/remainder (ie has to pay taxes)
There are 2 equitable maxims:
i) Equity looks on that as done which ought to have been done
ii) Equity imputes an intention to fulfill an obligation
Ratio: Obligation/cannot benefit by not paying taxes, can’t sell against remainderman’s wishes
Injury to title: life tenant cannot benefit (by obtaining fee simple) from her own failure to live up to obligation to pay taxe
Morris v Howe (1982, Ont HC)
Ratio: Partition not possible in the case of consecutive interests as here (only in co-ownership).
(should have asked for wills variation within 6 months)
