Don’t Do The Crime: Forfeiture Conditions in Wills

March 15, 2019 Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Trustees, Wills 0 Comments

In his Will, Moses Woods left his family home to his third son, David, subject to a life interest in favour of Moses’ wife, PROVIDED THAT David has not been convicted of a criminal offence before he reached 21 years of age. In the event that David was convicted, the home was to be sold and the proceeds would pass to his two other sons.

The deceased died when David was 20. Unfortunately, David was convicted of criminal offences at the age of 17. This was before the Young Offenders Act was in force. David was convicted as an adult.

Notwithstanding, David asked that the home be transferred to him. The estate trustee (one of the deceased’s two other sons) asked the court for advice and directions.

Before the lower court (Woods Estate v. Woods, 2005 CanLII 1411 (ON SC)), the court held that the condition was a “condition subsequent”, meaning that the home vested with David at the time of the deceased’s death, subject to divestment if David was to be convicted of a criminal offence before reaching the age of 21. Although he was convicted, the lower court held that the operation of the condition was postponed until David turned 18, the age of majority. The lower court held that the operation should not operate while David was a minor because, as a minor, he could not refuse or neglect to perform the condition.

The estate trustee appealed. On appeal (2005 CanLII 40134 (ON CA)), the Court of Appeal disagreed with the conclusions of the court below. First, they said that it was not clear that the condition was a “condition subsequent”, acknowledging that the application judge herself said that “the matter is not free from doubt”. In any event, they disagreed that David was not bound by the condition until the age of 18. They found that while a minor is not accountable for refusing or neglecting to comply with a condition subsequent that the minor is incapable of complying with, David’s circumstances did not fall within that category. David was capable at the age of 17, as a matter of law, of committing and being convicted of criminal offences. In the eyes of the [then] criminal law, he was an adult and responsible for his criminal misdeeds.

The Court of Appeal went on to find that relief from forfeiture was not available. None of the situations in which relief from forfeiture could granted applied here.

In sum, David was found to have breached the condition of the will, and therefore forfeited his right to the property.

Have a great weekend.

Paul Trudelle

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