Class Gifts

Question 1

Why do them?

Answer 1

• Convenient way to give gifts in a will to a group of people
• Allow for the number of beneficiaries to organically grow through testators lifetime (don’t have to keep changing will)

Question 2

Member of a class pre-deceasing

Answer 2

NOT subject to lapse. If you successfully argue it is a class gift and member of class pre-deceases their share is re-absorbed by the rest of the class

Question 3

What about anti-lapse and class gifts?

Answer 3

In NB our anti-lapse clauses apply to class gifts (if gift to preferred class it is not re-absorbed but s.32 applies)

Question 4

When is it considered a class gift

Answer 4

Made to a class of persons, discernible, not individually named or numbered. When testator dies all people WHO ARE LIVING who match the description of the class get an equal share

Question 5

What happens if all members of a class pre-decease

Answer 5

If everyone in artificial class dies it will lapse—if no possibility of class members taking it it will lapse

Question 6

Substitutionary provisions built under class gifts

Answer 6

• Class gift by nature provides inferred substitution scheme
• In NB anti-lapse
• Can make a class gift but write “if any of my children pre-decease me then to their children per stirpes”

Question 7

Where a substitutionary provision is a problem

Answer 7

When would be class member dead before writing of will

To be a member you have to be alive after will was written

(have to meet condition to be in the class- can’t be dead when it starts)

Question 8

Re Grasset

Answer 8

Facts: gift to brothers and sisters (only one sister alive and substitution clause to their children)

Ratio: Court looked at being dead before will written. Look at actual wording and its a matter of perception, did they mean to make a gift? plural word, meant her in it.

Question 9

Identifying whether something is a class gift

Answer 9

(1) Words clearly indicate class

2) When it appears testator intended class gift (even when lots of stuff pointing to it not being class gift

Question 10

Words that clearly indicate class

Answer 10

Identify unnamed and unnumbered group of people (ex: my grandchildren)

Question 11

What to consider when looking at context/ wording to determine class gift even if the people are named?

Answer 11

Are all of these gifts the same? Any conditional additions on the gifts to one of the individuals as there are on the others?

-If one has a condition the others don’t not a class gift (class gifts meant to vest in interest at the same time)

Question 12

Re Snider

Answer 12

Facts: Everything to go to son Dorwin’s two children if living. Only one alive if he died & no residue clause so would go to intestacy. Class gift or individual? (class kid gets everything if individual half lapses and intestacy)

Ratio: class gift, good example of where intention plays in. Where a gift is to a number of persons who are united/connected by some common tie and you can see the testator was looking to the body as a whole rather than to the individual members. And you can see that he intended that if one or more died in his lifetime and the rest would take. Then it should be followed

Question 13

Classes can be made up of

Answer 13

Anybody. Not just natural groups.

Question 14

Artificial classes

Answer 14

Different people identified to form one group or a group of people who are not related (ex: to co-workers)

Question 15

Kingsbury v Walter

Answer 15

Facts: To Elizabeth Jane Fowlet and the child or children of of my sister who shall attain the age of 21. EJF didn’t have the condition, prima facie not class. She was really close to 21 when will written. EJF died 2 years before testator.

Ratio: If court wants it can find anything to be a class gift. Close to 21 and referred to nieces with EJF in other parts.

Question 16

Description by number

Answer 16

Ex: to my 3 children

When you name or number you take it out of class gift, singling out children and individualizing them

Question 17

Re Burgess

Answer 17

Facts: “to the children (boy and girl) of William. William had 6 when she died

Ratio: If there are more of the class than specified the court will try to discern intention. if court can it will try to discover who is meant from both the wording of the will and extrinsic evidence. Deemed a class gift.

Question 18

Re Hyslop

Answer 18

See what the will says—see if you can find sufficient express language to give you a directive into whether the class closes. IF you can see when the testator intended don’t go to class closing rule.

Question 19

When the class closed determined

Answer 19

Who is eligible to receive a vested interest

Question 20

When do class closing rules apply?

Answer 20

When no clear intention by testator

Question 21

Intention of the court for closing

Answer 21

Close as quickly as possible

Question 22

Basic rule with class gifts

Answer 22

If a class member pre-deceases testator then the gift never vests

ONT- always re-absorbed
NB- Anti-lapse

Question 23

Class closing rules for immediate unqualified gifts to a class

Answer 23

Absent contrary intention closes on death of testator. Class only available to members alive when testator dies (fetus too)

Question 24

Natural closing of the class

Answer 24

If no members alive when testator dies but there is a possibility for them to be born the class will close naturally (when no longer possible for new members to exist)

Question 25

Vesting implications for immediate unqualified gifts

Answer 25

If at least one member is alive at T’s death, interest vests immediately

Question 26

What about vesting implications for natural closing with immediate unqualified gifts

Answer 26

Interest vest as soon as they come into existence. Disposition only takes place after class closes

Question 27

What about vesting implications for natural closing with immediate unqualified gifts if you met the condition but then you die

Answer 27

Goes to your estate

Question 28

Immediate qualified gifts

Answer 28

If there are members of class who have satisfied the condition when testator dies the class closes on testator death. Everyone alive is still able to qualify if they haven’t met the condition

Question 29

Immediate qualified gifts if no one meets condition when testator dies

Answer 29

Class remains open until someone meets the condition

Question 30

Vesting with immediate qualified gifts

Answer 30

• Don’t vest if you don’t meet condition- if does not vest reabsorbed
• Anti-lapse can’t apply if you don’t meet the condition

Question 31

What if beneficiary pre-deceases testator (immediate qualified)

Answer 31

Ex: Child 1, 25 dies, rest under 21

• If only they met the condition the class remains open (someone needs to survive testator and meet condition to close the class)
• If meet condition and pre-decease, subject to anti-lapse

Question 32

What if don’t meet condition and pre-decease

Answer 32

re-absorbes

Question 33

Postponed absolute gifts

Answer 33

Gifts without condition but postponed (ex: trust fund or remainder people)

Ex: to A for life then to children of X
Ex: to A for 10 years and then to children of X

Children of X don’t need to do anything but postponed

Question 34

Prima facie rule for closing postponed absolute gifts

Answer 34

Gifts close on death or life tenant or upon the accumulation period of a trust

Question 35

What if no one born before time up for postponed absolute?

Answer 35

Naturally occurring class

Question 36

Vesting for postponed absolute?

Answer 36

Any class member that survives the testator will have their share vest- if not born when testator dies but lives, have survived 
-if one dies before time up their share vests with their estate

Question 37

Postponed qualified gifts to a class

Answer 37

Class closes when postponement ends and upon a member of a class fulfilling condition

Question 38

Anti lapse

Answer 38

does not apply when they do not pre-decease but die before meeting the condition

Question 39

Charlesworth estate

Answer 39

Immediate unqualified gift

Absent contrary intention closes on death of testator, no contrary intention here.

Question 40

Latta v Lowery

Answer 40

Life estate and then to her children

All 8 children class members and the 3 that pre-deceased life estate their estates get it

Question 41

Re Edmonds Wills Trust

Answer 41

Postponed qualified gifts

Ratio: terms whenever born were taken as a contrary intention- rather than closing when condition met natural closing

Question 42

Pseudo class gifts

Answer 42

Gifts to each member of a class. Don’t behave like class gifts just use class gifts to determine who.

Ex: to each niece $1000 each

Question 43

Closing rule for pseudo gifts

Answer 43

Absent contrary intention class closes on the date of the testators death, period. Doesn’t matter if theres postponement

Question 44

What if no one meets the class for pseudo at T’s death

Answer 44

Class still closes and gift lapses

Question 45

Vesting with pseudo gifts

Answer 45

• Where beneficiary pre-deceases T, not re-absorbed into class- lapses or anti-lapse applies
• HOWEVER if someone pre-deceases and doesn’t meet condition, lapses and no anti-lapse

Question 46

Re Belleville Westminster Bank Ltd

Answer 46

No contrary intention in will so class closes at death of testator.