Tag: rule of convenience
An Ontario Court of Appeal decision released yesterday provides clarity regarding the situations in which beneficiaries of legacies will be entitled to interest on the sum payable to them under a Last Will and Testament.
In Rivard v Morris, the testator had held farmland of significant value. A prior Will left a farm of comparable value to each of his daughters (as the testator had previously gifted a farm property to his son), and divided the residue of the estate equally between the three children. In the months preceding his death, however, the deceased amended his estate plan to provide for a greater benefit to his son, leaving him the residue of his estate (inclusive of the farm properties) after distributions to each daughter in the amount of $530,000.00.
After the testator died, the daughters challenged his Last Will on the basis of alleged undue influence. The will challenge was unsuccessful. The daughters subsequently commenced another proceeding after their brother (the sole remaining estate trustee after their previous resignations) refused to pay to the sisters interest with respect to the legacies of $530,000.00. They argued that they were entitled to interest commencing one year after the date of their father’s death, notwithstanding that the payment had been delayed in part because of the will challenge initiated by the daughters. Any interest would have been payable out of the assets to which their brother was otherwise entitled as sole residuary beneficiary of the estate.
The daughters were unsuccessful at the hearing of their application and appealed. The Court of Appeal found in their favour. Justice Paciocco ordered the payment to each daughter interest in the amount of $53,000.00 out of the residue of the estate. In doing so, Justice Paciocco relied upon the “executor’s year” and the “rule of convenience”. In describing the rule of convenience, Justice Paciocco stated as follows (at paragraphs 24, 25):
The “rule of convenience” can be easily explained, in my view. One of the maxims of equity is that it presumes as being done that which ought to be done. Since the beneficiaries should be enjoying the earning power of their legacies by at least the anniversary date of the testator’s death, where that enjoyment is postponed and the testator has not provided an alternative date for payment of the legacy, interest is to be paid…This general rule has been adopted in Ontario.
The rule of convenience was considered by the Court of Appeal to promote certainty and predictability, and the lower court’s decision to deny the daughters’ interest on the basis that they had commenced litigation against the estate was said to be contrary to principle, as this would have the impact of discouraging “even meritorious litigation”. While the Court of Appeal did neither confirmed nor denied whether judges are able to exercise discretion to deny interest to beneficiaries of legacies, it found that it had been inappropriate for the application judge to do so in this case.
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When drafting wills, it is common to make gifts to a class of persons rather than naming the specific beneficiaries. This might include a gift to one’s grandchildren or to members of one’s book club. With a class gift, the members of the class may differ between the time of the writing of the will, the death of the testator and following the testator’s death; Some members may leave and new members may join in (for example, the birth of a grandchild). Because of the fact that membership in a class can change over time, the rule of convenience operates to the determine when a class might close so as to give final effect to a class gift.
The rule of convenience dictates when a class closes based on the idea that only persons in existence at the death of the testator are intended to take under the will. This rule will come into effect only where the will does not provide for when the class will close. For example, a will that provides a gift to “all my grandchildren now living” will take effect from the date of execution and only grandchildren in existence on the date of execution will benefit on the basis that the will limited the class to grandchildren alive at the date of execution. Where the will, however, does not provide any guidance as to the closing of the class, the rule of convenience will come into play.
Where a class gift is of a certain amount of money to each member of the class, rather than a share of some specified sum, the class will close immediately on the death of the testator. Thus if the testator provided that each member of the class was to receive $1,000.00, the class will only be comprised of those persons in existence at the time of death. This class would include any children in gestation, but not yet born at the time of the closing.
Where the class gift is such that the members will receive a proportional share of a gift, the rule dictates that generally, if members of the class have come into existence at the time of the testator’s death, then the class closes on the date of the testator’s death. Any new members of the class who join after the date of death would be excluded from receiving any interest.
Certain exceptions exist to this general rule. For example, where a class gift follows a life interest, the class closes at the termination of the life interest. Thus any member alive at the death of the testator or who comes into existence before the death of the life tenant will take under the class gift. Where the will stipulates that the gift is postponed until each member of the class fulfills a certain condition (for example, turning 21 years of age), then the class will close on the date of the first member fulfilling that condition. Thus where the gift is to grandchildren with the gift to be distributed at the age of 21, then any grandchildren born after the death of the testator and before the first grandchild reaches 21 will also join the class.
To learn more about the challenges posthumous conception and the legal definition of “child” may pose with respect to the rule of convenience, see “Posthumous Conception: Recent Changes to the Succession Law Reform Act and their Impact on Estates Law,” a paper presented by Krystyne Rusek of Pallett Valo LLP.
If you’d like to learn more on the distinction between class gifts and gifts to specific entities, see this blog.
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