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Estates - Wills - Vesting at Death. Ross v. Canada Trust Company
In Ross v. Canada Trust Company (Ont CA, 2021) the Court of Appeal considers the presumption that a will vests on death:[57] The law presumes that a testator intends for interests to vest at his or her death or at the earliest moment thereafter as is consonant with the terms of the will: Albert H. Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016), at §17.3.2. An instance of the application of this presumption, upon which Gordon relies, is where there is a direction to pay the income of a fund to one person during his lifetime and to divide the capital among certain other named and ascertained persons on his death, even though there are no direct words of gift either of the life interest or of the capital. In those circumstances the rule is that vesting of the capital takes place in the remaindermen at the time of the testator’s death: Browne v. Moody, 1936 CanLII 119 (UK JCPC), [1936] O.R. 422 (U.K. P.C.), at p. 427.
[58] However, the presumption of early vesting is just that – a presumption. Like any presumption, it may be displaced by a finding regarding the actual intention of the testator as reflected in her will. As put in Feeney’s Canadian Law of Wills, at §§17.7 and 17.8:The courts are inclined to hold a gift as vested rather than contingent wherever the particular words used, and the will as a whole, admit of a construction that will result, as is said, in “early vesting”. That inclination has always been said to be particularly strong where the property is land. It is accurate to refer to the tendency of courts to call gifts “vested” as a presumption to that effect, so it can be said that gifts are to be held to be vested unless there is a clear condition precedent. Accordingly, a gift, whether a devise or a legacy, that makes no reference to the time of vesting should always be held to take effect at the testator’s death, unless that date of vesting would disturb provisions already made in the will, or unless the will, as a whole, evinces a clear intention that the gift operate contingently and at a later date.
The recent trend of jurisprudence has been to strive to establish and implement the actual intentions of the will-maker. Consequently, the presumption in favour of early vesting as well as any other “rules” of construction may be applied only if the courts have some doubt about the will-maker’s intention.
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