The “doctrine of facts of independent significance” is a doctrine that can assist in resolving potential uncertainty in a will.
For example, a bequest of “my car to my partner at the time of my death” may be void for uncertainty. However, certainty can be achieved by reference to a fact of independent significance: that is, a fact that is independent of simple testamentary significance, such as the fact of who the testator’s partner was at the time of death. The fact of the make and model of the testator’s care is also a fact of “independent significance”.
The doctrine is illustrated in the 1837 decision of Stubbs v. Sargon (1837) 2 Keen 255, 48 E.R. 626. There, the testatrix directed that certain of her property be divided “amongst my partners who shall be in co-partnership with me at the time of my death or to whom I may have disposed of my said business”. Prior to her death, the testatrix sold her business to certain persons. An action was brought to challenge the gift in the will. It was argued that the gift was “imperfect”, as the testatrix did not designate the beneficiaries, leaving them to be constituted afterwards, with none of the solemnities associated with making a will.
The court disagreed. The court drew an analogy to a bequest to a testator’s children. Even though the testator may not have children at the time of making the will, the gift will be upheld.
“The point is that though a non-testamentary act may affect the disposition of property passing through a will, if it can be said that the act has a non-testamentary significance, that is, a significance which is not exclusively referable to the passing of property under the will, then the non-testamentary act is effective to pass such property.”[1]
Thus, in the example above, children are children regardless of what is stated in the will. Their status as children is of independent significance.
The doctrine is of limited application. It will not be extended to validate a “pour-over” clause in a will that makes a bequest to an amendable, revocable inter vivos trust. As noted in Osterhoff on Wills, 8th ed., such trusts do not have a sufficient “independent significance”, and the “testator is purporting to make a future unattested codicil to the will”.[2]
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[1] Quinn Estate v. Ryland, 2019 BCCA 91, para. 25, citing Professor Litman, “Pour-Over Wills: Their Relationship to the Doctrine of ‘Incorporation by Reference’ and the Doctrine of ‘Facts of Independent Significance’”, (1979) 4 E.T.R. 48.
[2] Quinn Estate, supra, para. 28