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The court interpreted a will, finding that specific devises of farm properties vested upon the testator's death but must abate rateably to pay estate tax liabilities.
This decision interprets the will of William Archibald Stewart, focusing on the vesting and abatement of gifts of farm properties to his sons, Robert and Winfield, and the impact of subsequent events including the assignment of a mortgage to William’s widow, Edith, and her own testamentary dispositions.
The court addresses whether gifts vested at William’s death or Edith’s, the effect of the mortgage assignment, the abatement of gifts to pay estate liabilities, and related issues of constructive trust, unjust enrichment, and executor liability for tax consequences.
A will is not a trust and is not subject to the three certainties of trust law.
The appellants, estate trustees for two deceased individuals who executed mirror Primary and Secondary Wills, appealed a decision denying their applications for Certificates of Appointment of Estate Trustee.
The application judge had held that a will is a trust and that the allocation clauses in the Primary Wills failed the 'three certainties' test for trusts due to uncertainty of subject-matter.
The Divisional Court allowed the appeal, finding that a will is not a trust and is not subject to the three certainties.
The Court further held that even if the three certainties applied, the allocation clauses provided an objective basis to ascertain the subject-matter, satisfying the certainty requirement.
The Court ordered the issuance of the requested Certificates of Appointment.
