Limits on Inheritance: Capacity of Beneficiaries Flashcards
Capacity of Beneficiary
- Whether or not someone is able to inherit under a will, intestacy, insurance, pension, etc
- Also pertains to public policy application
Illegitimacy
Not a thing anymore, how you are born not an issue for intestacy or will
Adoption
To be child/issue have to be biological or legally adopted.
Given up for adoption
If legally given up for adoption you do not qualify under intestacy and perhaps in wills
Step children
Not covered unless legally adopted, even if held out to society as your own
Re Darischuk Estate
Facts: to “my dear grandchildren” one not biological but treated like child
Ratio: court interpreted strictly and said not grandchild
Reeves v Schreiner
Facts: left to grandchild at time written believed was biological then started to have doubts later
Ratio: Interpret at the time will written not death, believed she was bio then. If courts think testator intended to include someone regardless of reality they will interpret that child to fit into the description
Notes on Reeves
- This is the case to follow not Darischuk
- This loose interpretation of intention is for wills not intestacy
Personal representative role in adoption matters
Required to make inquiry as to whether children are born out of marriage. In ONT can be personally liable if heir comes up that they didn’t take time to discover.
To sell a home through an estate
All heirs/ sufficient number of them have to sign off, if new heirs emerge that diminishes
In NB adoption exception
Provision that allows someone to preserve Childs inheritance right even if they’ve been given up for adoption
Unworthy heir provision
As a matter of public policy, beneficiary may be barred from inheriting through any means (intestacy, will) because of something they have done
Doctrine of Forfeiture
Any benefits that a murderer receives b/c of the homicide of testator, are forfeited to the next person in line in terms of alternative beneficiaries.
Issues of proof
- Forfeiture hearings are civil
- Issue of standard of proof and kind of evidence
Hallington v Hurthorn
Criminal conviction of murder could not be admitted as evidence in forfeiture hearing (have to prove it all over again)
Hallington v Huthorn
Changed. Courts inclined to enter criminal conviction as proof for these reasons: mockery, what if civil finds not guilty and criminal finds guilty? And provides avenue for collateral attack.
What if someone pleads guilty? (Charleton)
Issue here was whether plea of guilt was admissible
Dhingra v Dhingra
Facts: husband killed wife was found NCR. Can he be beneficiary of her insurance policy?
Ratio: under common law rule of forfeiture doesn’t apply to NCR, statute in ONT says NCR finding can be used of proof of committing offence. Two can work together. Provision applied here though and he was barred from taking.
Murder Suicides
Generally a presumption of sanity and forfeiture
Re Gore
Facts: killed wife Ruth and two daughters and then himself. There is medical evidence that proved death order was wife, kids, him. Ruth’s mom trying to bar other grandparents from getting, can’t go through him.
Ratio:
(1) Homicide severs JT but doesn’t take his half away. While forfeiture can stop from receiving a benefit it can’t take away his property, (2) also cannot disentitle killer from insurance policy if killing the person did not directly lead to him receiving the proceeds under the policy,
(3) it doesn’t prevent family members of the killer from taking under intestacy provided they are not receiving through the killer but from separate and independent rights
Problem with intestacy and homicide
What happens if you kill someone but have an innocent child that would have inherited?
Re DWS
Facts: Son murders parents who don’t have a will. He has a 2 y/o. Can child inherit instead of barred son?
Ratio: Because he is still alive son is barred so so is 2 y/o
Re Bolden Estates
Facts: Parents left estates equally to their surviving children, w/ a gift over to the children of child who had predeceased the testator. Both their son and daughter survived them, but the daughter killed their parents, and plead guilty to murder. Gifts were residue.
Ratio: AB’s wording (same as NB) of stature does not have predecease in it, gave more wiggle room to say barred child died allowing issue to inherit.
Brissette v Westbury Life Insurance Co
-Leading case on life insurance/ homicide
Facts: Husband was beneficiary of policy, killed wife, tried to waive right so her estate would get it.
Ratio: To pass on the rights to the policy, he required rights to the policy in the first place. Forfeiture stripped those rights, thus her estate couldn’t benefit.
Oldfield v Transamerica Life Insurance
Facts: husband died doing an illegal act, insurance company refused to pay wife saying she would benefit from his crime
Ratio: Court held that forfeiture doesn’t extend so far as to prevent innocent beneficiaries from benefiting, as he did not intend to die during the commission of his illegal act.
Witnesses as legatees
If you witness and you or your legally married spouse are beneficiary the gifts to you/spouse are void (in NB)
Exception to witness as legatee
- If gift concerns directions to repay a debt owed to you or your spouse
- If more than two witnesses
- If holographic or privileged can be struck off
In Ont and Sask for witness as legatee
Can waive this rule if evidence of no undue influence, not in NB
Sutherland v Sutherland
Facts: daughter was beneficiary to get entire residue but she witnessed the will
Ratio: gift void. The purpose of the dispensing power was to enable to accept a doc as a will, despite defects in form. A gift to an attesting witness will be null and void.
Re Trotter
Common Law Rules:
- If a witness was not in a prohibited class when the will was attested, then the gift is valid. (ex: if dating someone and witness and then marry)
- If a witness attested to an original will and was added as a beneficiary later by codicil, the gift by codicil is valid as long as the witness does not attest to the codicil
- If a witness is also a beneficiary, the gift can be directed by having the gift remade by codicil w/ different witnesses.
- The legatee must be able to point to an instrument giving him his legacy not attested by himself before he can establish his right to his legacy.
Re Ray’s Will Trust
Facts: Nun. Left to abbess, one witness became abbess after witnessing.
Ratio: Status is at the time of execution (wasn’t abbess when she witnessed, gift good)
Repugnancy
- Reason why condition of will can be void
- Conditions that offend the fundamental elements of property law (sell strip of your kitchen, fee simple after fee simple, restraint on alienation)
Re Collier (repugnancy)
Facts: condition on parcel of land saying it could not go to anyone outside the family
Ratio: invalid restraint on alienation
Blackburn v McCallum
Canada saying won’t condone restraints on alienation
Bagg v Savoia
- Partial restraints on alienation, minor restraints don’t contravene public policy
- Contract says can buy these for a certain price but can’t sell for 5 years
Ratio: through a gift/ will putting a restrain on alienation it is far more likely to be found to be in contravention of public policy but here there was a contract, a business deal. Some restraints allowed but not in wills context.
Conditions of impossible performance
- Impossible not improbable
- Determined on specific beneficiary for intended clause
What if deemed impossible as a condition subsequent
Condition void, gift valid
Deemed impossible and condition precedent
- If it is a gift of personal property or mixed real and personal but the condition precedent is deemed impossible then the gift can also be saved
- If it is a condition precedent in the case of real property only the gift will fail
Re McDonald
Facts: Made impossible condition regarding location of baby house, impossible for city to provide assurance sought and testator knew this
Ratio: condition precedent but for personal property (money) so the gift stands
Uncertainty
The court and the beneficiary don’t really understand what is entailed in actually fulfilling a condition
If uncertainty in condition subsequent
Clause fails and gift is fine.
Uncertainty in condition precedent
Gift fails. Will try really hard to say it is subsequent but if they can’t they try to say it is somewhat certain.
Standard for certainty
Subsequent: high- must be able to determine precisely and distinctly what the condition requires under all circumstances not just those of a particular beneficiary
Precedent: just have to show condition is capable of being given some plausible meaning
Re Tucks Trust
Facts: In order for someone to keep their title the wife had to be of jewish blood, if there was dispute Rabi would decide
Ratio: Certain, have someone to decide
Public policy: Discrimination
Racism, homophobia, etc. Canada only country where we have said discrimination for discrimination sake contrary to public policy
Wren
-Restrictive covenant
Facts: says cannot be sold to jews
Ratio: first case to say its bad because its racist and private law does not condone racism
Canada Trust Co. v Ontario Human Rights Commission
Facts: scholarship restricted to white people, majority have to be male, protestant, one parent British. Recitals of trust say the future of civilization is white supremacy.
Ratio: so offensive it is contrary to public policy. Can have scholarship that benefits a more discriminated against group. 15(2) of charter.
Murley Estate
Facts: gift from testator that says to my son provided he adheres to a real religion and doesn’t become another kind
Ratio: contrary to public policy and crossed out
McCorkill v McCorkill Estate
Facts: left entire estate to Neo nazi party in the states
Ratio: discrimination in a will can be contrary to public policy
Spence v BMO
Facts: daughter left out of fathers will he said “she showed no interest in me as a father” she argued because she had a baby with a man of another race.
Ratio: Nothing in the will to attract public policy finding- absent something on the face of the will can’t get into public policy. Public policy should never address clauses in a will that are inserted out of spite but don’t do anything. We have the right to testamentary freedom; we can write whatever we want in our will.
