Class Gifts

Persons entitled to take Wills (Construction)

Compiled by Eric B. Appleby:

In General

A testator invites litigation by the use of words like “children” or “issue” or “family” rather than using the names of donees.

Class Gifts

“In my opinion the principle is clear enough. When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and so you can see that he intended that if one or more of that body died in his life-time the survivors should take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator.” See Allan Estate, Re (1994), 161 A.R. 292 (Sur. Ct.), para. 17.

“Where there is a gift to a group of persons and one or more of them predeceases the testator, it is necessary to determine whether the gift is a gift ‘personae designatae’ or whether it is a class gift. … generally speaking, a gift to a group of persons whose number is not mentioned or whose members are not named is to be regarded as a class gift, while a gift to a group whose number is given or whose members are named is to be regarded as a gift ‘personae designatae'”. See Campbell Estate, Re (1998), 172 Nfld. & P.E.I.R. 141; 528 A.P.R. 141 (P.E.I.T.D.), para. 7.

A testator had nine children. Two died before the testator executed his will. Two others predeceased the testator. The residue clause of the testator’s will provided that his estate be divided “equally amongst my children, share and share alike, to be theirs absolutely”. At issue was whether the clause created a class gift or either a tenancy in common or a gift persona designatae. The Prince Edward Island Supreme Court, Trial Division, held that the testator made a class gift. Therefore, the residue was to be divided equally among the five surviving children. See Campbell Estate, Re (1998), 172 Nfld. & P.E.I.R. 141; 528 A.P.R. 141 (P.E.I.T.D.).

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This entry was last updated: February 13, 2017