Class gifts are an effective way to gift property to multiple beneficiaries. If a potential member of the class dies before the gift is distributed, however, a question may arise: Is the beneficiary – and their estate – still considered part of the class entitled to share in the gift?
It is often the case that the beneficiary will still be part of the class if they were alive when the testator passed away, due to the presumption of early vesting. Having said that, depending on the wording of the testator’s will, the court may find that the gift does not vest until after the testator’s death, as was the case in Lewis v Jack, 2025 BCSC 343. A potential beneficiary of a class gift survived the testator – his father – in this case, but died before his father’s estate was distributed. The court found that the gift would not vest until the estate was distributed because the pertinent will clause provided that the estate “then remaining” was to be divided amongst the testator’s sons “then alive”. As a result, the chambers judge held that the son’s estate would not share in the residue of his father’s estate. For a more detailed discussion of the court’s decision, see my blog post from last year: Lewis v Jack – A Refresher on Class Gifts and Vesting.
In a noteworthy turn, the BC Court of Appeal recently overturned the chambers judge’s decision in Lewis v Jack, 2026 BCCA 18, clarifying that the presumption of early vesting applies to class gifts unless a will clearly expresses a contrary intention.
Understanding the Presumption of Early Vesting
Writing for the panel, Justice Fisher emphasized that the presumption of early vesting, now more than 200 years old, remains a foundational principle to will interpretation. The Court distilled the following key principles:
- “[A] testamentary gift is presumed to vest on the death of the testator unless there is a clear intention to the contrary expressed in the will”.
- The presumption applies whenever distribution of a gift is postponed for reasons not personal to the legatee, such as where a life interest is given to another person.
- The presumption applies equally whether the residue is gifted to a named beneficiary (or legatee) or to a class.
- Courts are reluctant to interpret a will in a way that effectively allows the executor to determine the date of vesting, unless the testator’s will clearly indicates that this was the testator’s intent. Justice Fisher cited Gaskell v Harman, [1805] 32 Eng Rep 1177, on this point, where the Lord Chancellor warned that allowing an executor to determine the date of vesting would invite “inconvenience and fraud”.
The Importance of Reading the Will as a Whole
With respect to the chambers judge’s interpretation of the testator’s will, Justice Fisher found that the judge erred by failing to interpret the impugned will clause in the context of the will as a whole. In concluding that the gift had not yet vested, the Court of Appeal noted that the chambers judge focused on the sequential exercise of the executor’s duties and overlooked two important features of the will:
- The broad discretionary powers granted to the trustee, particularly with respect to the timing of the duty “to sell, call in and convert” the estate assets; and
- The controlling words of the will clause which contained the residual gift, which provided that the beneficiaries took all of the testator’s property through the trustee, subject to the directions in the will.
When the words “then alive” were read in the context of the entire clause, including the controlling words, the Court of Appeal concluded that they referred to the class of beneficiaries alive at the time that the estate became operative, being the time of the testator’s death, rather than the beneficiaries alive when the residue is distributed.
In reaching this conclusion, the Court of Appeal also pointed to another clause in the will which provided that life insurance proceeds payable to a beneficiary who predeceased the testator were to fall into the residue, finding that this clause also confirmed the testator’s intent to benefit all children who survived him through an absolute gift.
In light of these considerations, the Court of Appeal concluded that the words “then alive” did not “clearly evince an intention to rebut the presumption of early vesting.”
Can the Vesting of a Gift be Dependent on the Estate Administration?
Lastly, the Court of Appeal affirmed that the date of vesting for a testamentary gift typically will not depend on the timing of the estate administration, and reviewed a number of cases that confirm this point. In the words of Justice Fisher: “[i]t is rare … to consider a vesting date that does not correspond to the date of the death of the testator or another person, or a fact personal to a legatee (such as attaining a certain age)” and “any delay in liquidating or dividing up an estate does not prevent a gift from vesting at the testator’s death absent clear language.”
Key Takeaways
This decision is a timely reminder of how the presumption of early vesting applies to class gifts unless a will clearly indicates that the class will not close when the testator passes away. While it may appear at first glance that the words in a will tie entitlement to share in a class gift to an event following the testator’s death, it is important to remember that such words may have a different effect when the will is read as a whole.
Thank you for reading and have a wonderful rest of your day,
Suzana.