Limits on Inheritance: Capacity of Beneficiaries

Question 1

Capacity of Beneficiary

Answer 1

• Whether or not someone is able to inherit under a will, intestacy, insurance, pension, etc
• Also pertains to public policy application

Question 2

Illegitimacy

Answer 2

Not a thing anymore, how you are born not an issue for intestacy or will

Question 3

Adoption

Answer 3

To be child/issue have to be biological or legally adopted.

Question 4

Given up for adoption

Answer 4

If legally given up for adoption you do not qualify under intestacy and perhaps in wills

Question 5

Step children

Answer 5

Not covered unless legally adopted, even if held out to society as your own

Question 6

Re Darischuk Estate

Answer 6

Facts: to “my dear grandchildren” one not biological but treated like child

Ratio: court interpreted strictly and said not grandchild

Question 7

Reeves v Schreiner

Answer 7

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

Question 8

Notes on Reeves

Answer 8

• This is the case to follow not Darischuk

- This loose interpretation of intention is for wills not intestacy

Question 9

Personal representative role in adoption matters

Answer 9

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.

Question 10

To sell a home through an estate

Answer 10

All heirs/ sufficient number of them have to sign off, if new heirs emerge that diminishes

Question 11

In NB adoption exception

Answer 11

Provision that allows someone to preserve Childs inheritance right even if they’ve been given up for adoption

Question 12

Unworthy heir provision

Answer 12

As a matter of public policy, beneficiary may be barred from inheriting through any means (intestacy, will) because of something they have done

Question 13

Doctrine of Forfeiture

Answer 13

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.

Question 14

Issues of proof

Answer 14

• Forfeiture hearings are civil

- Issue of standard of proof and kind of evidence

Question 15

Hallington v Hurthorn

Answer 15

Criminal conviction of murder could not be admitted as evidence in forfeiture hearing (have to prove it all over again)

Question 16

Hallington v Huthorn

Answer 16

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.

Question 17

What if someone pleads guilty? (Charleton)

Answer 17

Issue here was whether plea of guilt was admissible

Question 18

Dhingra v Dhingra

Answer 18

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.

Question 19

Murder Suicides

Answer 19

Generally a presumption of sanity and forfeiture

Question 20

Re Gore

Answer 20

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

Question 21

Problem with intestacy and homicide

Answer 21

What happens if you kill someone but have an innocent child that would have inherited?

Question 22

Re DWS

Answer 22

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

Question 23

Re Bolden Estates

Answer 23

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.

Question 24

Brissette v Westbury Life Insurance Co

Answer 24

-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.

Question 25

Oldfield v Transamerica Life Insurance

Answer 25

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.

Question 26

Witnesses as legatees

Answer 26

If you witness and you or your legally married spouse are beneficiary the gifts to you/spouse are void (in NB)

Question 27

Exception to witness as legatee

Answer 27

• 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

Question 28

In Ont and Sask for witness as legatee

Answer 28

Can waive this rule if evidence of no undue influence, not in NB

Question 29

Sutherland v Sutherland

Answer 29

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.

Question 30

Re Trotter

Answer 30

Common Law Rules:

1. 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)
2. 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
3. If a witness is also a beneficiary, the gift can be directed by having the gift remade by codicil w/ different witnesses.
4. 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.

Question 31

Re Ray’s Will Trust

Answer 31

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)

Question 32

Repugnancy

Answer 32

• 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)

Question 33

Re Collier (repugnancy)

Answer 33

Facts: condition on parcel of land saying it could not go to anyone outside the family

Ratio: invalid restraint on alienation

Question 34

Blackburn v McCallum

Answer 34

Canada saying won’t condone restraints on alienation

Question 35

Bagg v Savoia

Answer 35

• 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.

Question 36

Conditions of impossible performance

Answer 36

• Impossible not improbable

- Determined on specific beneficiary for intended clause

Question 37

What if deemed impossible as a condition subsequent

Answer 37

Condition void, gift valid

Question 38

Deemed impossible and condition precedent

Answer 38

• 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

Question 39

Re McDonald

Answer 39

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

Question 40

Uncertainty

Answer 40

The court and the beneficiary don’t really understand what is entailed in actually fulfilling a condition

Question 41

If uncertainty in condition subsequent

Answer 41

Clause fails and gift is fine.

Question 42

Uncertainty in condition precedent

Answer 42

Gift fails. Will try really hard to say it is subsequent but if they can’t they try to say it is somewhat certain.

Question 43

Standard for certainty

Answer 43

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

Question 44

Re Tucks Trust

Answer 44

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

Question 45

Public policy: Discrimination

Answer 45

Racism, homophobia, etc. Canada only country where we have said discrimination for discrimination sake contrary to public policy

Question 46

Wren

Answer 46

-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

Question 47

Canada Trust Co. v Ontario Human Rights Commission

Answer 47

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.

Question 48

Murley Estate

Answer 48

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

Question 49

McCorkill v McCorkill Estate

Answer 49

Facts: left entire estate to Neo nazi party in the states

Ratio: discrimination in a will can be contrary to public policy

Question 50

Spence v BMO

Answer 50

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.