Will Interpretation Problems and the Residue of an Estate
Yesterday, we set out the first of a series of interpretation problems identified by Rodney Hull, Q.C. that often arise in Wills. Today, we set out another common provision that tends to cause difficulty …
(1) THE RULE IN SAUNDERS v. VAUTIER (1841), Cr. & Ph. 240.
(2) THE CLAUSE - “The residue of my estate to A upon attaining age twenty-five years”.
(3) THE FACTS - A is nineteen years of age on testator’s death. There is no gift over in the event that A dies before attaining the age of twenty-five years.
(4) THE QUESTION -
(a) Is the gift:
(i) vested in possession?
(ii) vested in interest?
(iii) vested subject to being divested? or
(iv) contingent?
(b) When can A call for the gift?
(5) WHERE TO START RESEARCH -
(i) Theobald on Wills - page 603 - paragraphs 43 - 29.
(ii) Feeney’s Canadian Law of Wills, paragraphs 17.54 - 17.55.
(iii) Sheard, Hull and Fitzpatrick, Canadian Forms of Wills, page 214.
Interpretation Applications can be quite expensive and time consuming. To the extent that they can be avoided, with diligent research and the ultimate consent of the beneficiaries, together with the consent of the Public Guardian and Trustee and the Children’s Lawyer, if necessary, this may not be a bad thing!
All the best – Suzana.
