Rule in Cherry v Boultbee

May 25, 2021 Fred Tonelli Litigation Tags: , , 0 Comments

Cherry v Boultbee is an 1839 English case whose decision affects the law of wills and estates in common law jurisdictions to this day.

The rule, as outlined by the Honourable Mr. Justice Clark in the 2011 Alberta decision, Re Moody Estate, can be succinctly described as follows:

“Where a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed to participate unless he has fulfilled his duty to contribute.”

Justice Clark then described this rule’s application to estates law, quoting the 1891 decision of Re Akerman, Akerman v Akerman, which outlined that “the circumstance that a debt owing to a testator was statute barred at the date of death of the testator did not prevent the application of the rule in Cherry v Boultbee from being applied.”

In other words, if a beneficiary of an estate personally owed a debt to the deceased, prior to his or her death, then said beneficiary’s share in the estate could be deducted to satisfy this debt, even if this debt was barred by statute.

However, Justice Clark ultimately decided that the rule in Cherry and Boultbee did not apply in this case, throwing doubt as to its future application in Canada.

Following Moody, this rule was once more proposed in the 2017 British Columbia case of Re Johnston Estate. In this decision, Justice Church disagreed with Justice Clark and re-affirmed the application of the rule in Cherry v Boultbee:

“The rule in Cherry v Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length. The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal that he who seeks equity must do equity.”

It remains to be seen what the fate of the rule in Cherry v Boultbee will be in future Canadian case law.

Thanks for reading!

Fred Tonelli

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