Gifts

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Compiled by Eric B. Appleby:

Generally

The fundamental principle whereby the courts are guided in the interpretation of testamentary documents, is that effect must be given to the testator’s intention, ascertainable from the expressed language of the instrument. If it is not possible to determine the intention in this way, then recourse may be had to evidence regarding the situation of the testator at the time the will was made. See DiMambro Estate, Re, [2002] O.T.C. 900 (S.C.), para. 17. A testator bequeathed his house and its contents. The Saskatchewan Surrogate Court held that an automobile found stored in the garage of the house was included in the bequest. But the court held that uncashed cheques and other choses in action found in the house were not included in the bequest and were part of the residue of the estate. See Dixon Estate, Re (1990), 82 Sask.R. 241 (Sur. Ct.).

Accretions

Accretions to property, such as company shares, generally follow a bequest of the shares. See Palmer Estate, Re (1985), 69 N.S.R.(2d) 384; 163 A.P.R. 384 (T.D.) Search aid – MLB Key No. – Wills Topic 3109 is assigned to cases that consider whether the testator made a gift of accretions. See www.mlb.nb.ca and Appendix A for a list of cases that dealt with this issue.

Income from property

A testator bequeathed his business to his nephew. The Manitoba Court of Queen’s Bench held that the nephew was entitled to the income from the business from the date of the testator’s death. See Dearden’s Will, Re (1987), 46 Man.R.(2d) 222 (Q.B.), para. 71.

Interest on legacies

The general rule is that interest is payable on a pecuniary legacy beginning one year after the testator’s death. An executor is allowed one year from the date of death to settle the affairs of the estate. See Fraserview v. Gilmore Estate, [2003] B.C.T.C. 1920 (S.C.). In Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002) at 5-5: “(a) One Year Rule Subject to the exceptions hereinafter mentioned, where no special time is fixed for the payment of a legacy, it carries interest only from the expiration of a year from the testator’s death, and this whether the legacy is vested or not. The executor is allowed one year from the testator’s death to get in the assets and settle the affairs of the estate; at the end of that time the court, for the sake of general convenience, presumes the estate to have been reduced into possession, and interest then becomes payable, and is given for delay in payment . . .”

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This entry was last updated: February 13, 2017