What is property law’s role in this trend?

Problem: The Will

Problem

When the testator passes away, what interests in the forest land would likely be created through this provision in the will? Be sure to identify and address any problems with interpreting the will. Do you think the testator’s aim to return “control” and “recognize Aboriginal Title” via a testamentary bequest is consistent with the concept of Aboriginal Title as you currently understand it? Is it consistent with the aims of the Land Back movement as described by the Yellowhead Institute?

Feudal Land Tenure

Two key points:

• All land “owned” by the king (radical or allodial title)

• Privilege of tenure: property held “of the king”

Common Law Estates

Ownership of a legal interest in land, not ownership of land (e.g. fee simple estate).

Some terms you’ll see:

• Grant/Grantor/Grantee

• Devise/Testator/Donee

Fee Simple

“Largest estate known to the common law”

“To A and her heirs.”

Fee Simple

X grants: “To A and her heirs”

X grants: “To A”

X grants: “To A in fee simple”

Conveyancing Act, RSNS 1989, c 97

13 Except where a contrary intention appears by the conveyance,

(a) where words of limitation are not used, the conveyance conveys the whole property right that the party conveying had power to dispose of by the conveyance, including, in the case of real property, the fee simple;

Wills Act, RSNS 1989, c 505

27 Where any real property is devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or the whole estate or interest which the testator had the power to dispose of by will in such real property, unless a contrary intention appears by the will.

Life Estate

X grants: “To A for life”

X grants: “To A for life, then to B”

X grants: “To A for life, then to B for life, then to C”

A Puzzle

X grants: “To A in fee simple, then to B.”

Re Walker, (1925) 56 OLR 517

“I give and devise unto my said wife all my real and personal property saving and excepting thereout as follows … and also should any portion of my estate still remain in the hands of my said wife at the time of decease undisposed of by her such remainder shall be divided follows …"

Re Walker: Prohibition on restraining alienation

“Where there is absolute ownership, that ownership confers upon the owner the rights of an owner and restrains an alienation; and similar attempts to mould and control the law are void”

“When a testator gives property to one, intending him to have all the rights incident to ownership, and adds to this a gift over of that which remains in specie at his death or at the death of that person, he is endeavouring to do that which is impossible. His intention is plain but it cannot be given effect to.”

Re Walker: Options for interpretation?

• Fee simple (👍 claiming under Ellen Walker’s will)

• Life estate + gift over (👍 claiming under John Walker’s will)

• Is there a third option?

Re Walker: Interpretive principles

1. Construction of the will = intention of the testator

2. “The Court has then to endeavour to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention.”

Blackburn v McCallum

“I will that the aforesaid parcels of land shall not be at their disposal at any time until the end of twenty-five years from the date of my decease, and farther, I will that the said parcels of land shall remain free from all incumbrance, and that no debts contracted by my sons, William Chisholm and Hugh Chisholm, shall by any means incumber the same during twenty-five years from the date of my decease.”

Restraints on alienation

In what way is the restraint on alienation at issue in Blackburn different that the restraint at issue in Re Walker?

When is a restraint on the alienation of a fee simple interest valid? When is it invalid?

“[To MTI,] which non-profit organization should be prohibited from transferring the land to any other party for a period of 50 years, after which said organization may only transfer it to another Mi’kmaq-led entity for no more than an amount of $500,000.”

Land Back

Do you think the testator’s aim to return “control” and “recognize Aboriginal Title” via a testamentary bequest is consistent with the concept of Aboriginal Title as you currently understand it? Is it consistent with the aims of the Land Back movement as described by the Yellowhead Institute?