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CED, an Overview of the Law — Real Property: Fee Tail and Life Estates

Real Property (Ontario)

By J. Leanne Andree



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III -- IV: Fee Tail Estates & Life Estates



Click here for access to this CED title and its associated Canadian Abridgment links on WestlawNext Canada.



 







III.1: Fate of Estate in Fee Tail



See Canadian Abridgment: REA.I.2.b Real property | Interests in real property | Creation of estates | Estate in fee tail; EST.I.6.b.iv Estates and trusts | Estates  Legacies and devises | Nature of estate created | Estate in fee tail




At common law, to create a fee tail 1 in favour of a natural person, it was essential to grant the property to the grantee"and heirs of his body". It was essential to use the technical word of limitation "heirs" accompanied by some other phrase such as "of his or her body" or "of his or her flesh", indicating that heirs were to include only the direct lineal descendants of the grantee, and not all heirs both lineal and collateral. Eventually, it was legislated that in all conveyances made after July 1, 1886,2 it was no longer necessary to use the words "heirs of the body" in the limitation of an estate in fee tail, or to use the words "heirs male of the body" or "heirs female of the body" in the limitation of an estate in tail male or in tail female. It was sufficient to use the words "in tail", "in tail male" or "in tail female", according to the limitation intended, or to use any other words sufficiently indicating the limitation intended.



In the present day, a limitation in a conveyance or will which before May 27, 1956 would have created an estate tail must be construed as an estate in fee simple or the greatest estate that the grantor or testator had in the land.3





III.2: Common Law



See Canadian Abridgment: REA.I.2.b Real property | Interests in real property | Creation of estates | Estate in fee tail; EST.I.6.b.iv Estates and trusts | Estates | Legacies and devises | Nature of estate created | Estate in fee tail




Prima facie, "issue" means heirs of the body. Consequently, unless the context of the will made it clear that"issue" was not used in its prima facie sense, a devise to A and A's issue conferred an estate in fee tail upon A.1 Where land was devised to a devisee "and to his heirs lawfully begotten", the devisee took an estate in fee tail.2 If an estate for life was devised to A, with remainder to the heirs of the body of A, then by the operation of the rule of law known as the rule in Shelley's Case, A took a fee tail.3



Where real estate was devised over in default of heirs of the first devisee, and the ulterior devisee stood related to the prior devisee so as to be in the course of descent from him or her, whether in the lineal or collateral line and however remote, as the prior devisee in that case could not die without heirs while the devisee over existed, the word "heirs" was construed to mean "heirs of the body". Accordingly, the estate of the first devisee, by the effect of the devise over, was restricted to an estate tail, and the estate of the devisee over became a remainder expectant on that estate.4



If land was devised to A and the heirs of A's body, an estate in fee tail was thereby created, and any power given to A to vary the proportions to be taken by his or her heirs in tail did not affect the quality of the estate.5 Similarly, where a fee tail was created by a devisee to A and the heirs of A's body, a modification of the estate given to the heirs, however plainly inconsistent with an estate of inheritance, could not be given.6



By the rule of construction known as the rule in Wild's Case, if A devised his or her lands to B and B's children or to B and B's issue, and B had no issue at the date of the will, B would take an estate in fee tail.7 But if B did have issue at the date of the will, then, under such a devise, the words"children" or "issue" were considered as words of purchase conferring an interest upon the children, and not as words of limitation denoting the kind of estate to be taken by B.8 However, if there was a devise by A to B for life and on B's death to the children of B, then even if at the date of the will B had no children, any children would take by way of remainder and B would take merely a life estate.9



The rules enunciated in Wild's Case are rules of construction and are always subject to a contrary expression of intention.10



A devise of land in the words "all of which shall be and is hereby entailed on my said son and his heirs forever" was held by two judges of the Ontario Court of Appeal to confer an estate in fee tail upon the son.11 A devise to A for life with a remainder in tail made to A's first and other sons successively according to priority of birth conferred upon A not an estate in fee tail but only a life estate.12





IV.1.(a): Life Estate — Words in Conveyance Sufficient to Create Life Estate



See Canadian Abridgment: REA.I.2.c.i Real property | Interests in real property | Creation of estates | Life estate | Methods of creation




At common law, if no words of limitation were used in a deed, the deed operated to pass only a life estate.1 However, conveyances made after July 1, 1886 without words of limitation pass all the estate, right, title, interest, claim and demand that the conveying parties have in, to or on the property conveyed or expressed or intended so to be, or that they have power to convey in, to or on the same.2





IV.1.(b): Words in Will Sufficient to Create Life Estate



See Canadian Abridgment: EST.I.6.b.i.A Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | General principles; EST.I.6.b.i.B Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Creation by implication; EST.I.6.b.iii Estates and trusts | Estates | Legacies and devises | Nature of estate created | Absolute or life estate




At common law, although the intention to pass a fee simple might appear from other clear expressions in the will, a devise to A simply, without any words of limitation, passes to A a life estate only.1 But since, by the Succession Law Reform Act,2 a devise to A simply, without words of limitation, is to be construed so as to pass the whole estate of the testator unless a contrary intention appears, if a testator wishes to devise a life estate, he or she must use some restrictive words indicative of an intention to devise only a life estate.3



A gift to A, with a direction that at A's death"the residue" or "whatever remains" of the property will go to B, may give A a life interest only, while somewhat similar words may give A an absolute interest, or a life interest with a power of appointment or disposition.4 Some courts have refused to apply a rigid, technical attitude to the construction of this type of bequest. They look not so much to the institutions chosen by the testator in expressing his or her intention, but rather allow the construction which most closely reflects the testator's true intention.5 The problem is one of construction, and it is the task of the court to define the intention of the testator through the language he or she has used in the will, in light of the facts and circumstances known to the testator.6



It is the task of the court to ascertain whether the dominant intention of the testator was to give the devisee a life estate merely, or to give him or her an absolute interest, with all the rights incidental to such an absolute interest. If the court is of the opinion that the latter is the dominant intention of the testator, any subordinate expression of intention purporting to cut down the absolute interest must be rejected as repugnant.7



A testator may, in addition to giving the devisee a mere life estate, also give him or her a power of sale or power of encroachment which may be exercised at any time during the currency of the life estate.8



In addition to giving a devisee a mere life estate, a testator may also give a power to appoint the remainder, either generally or to a class.9



A devise of the profits of land to A for life will give A a life estate.10 A direction in a will that the testator's wife "shall be allowed to live on the said property during the term of her natural life" gives the wife a life estate.11 But where a farm is conveyed to A subject to the use by B of a bedroom for as long as B remains resident on the farm, B takes no estate under the deed.12 Where property is devised to A for life, A being unmarried at the date of the will, remainder to his wife for life, remainder to their children and their heirs, A, now a widower, may marry again and his second wife will be entitled to a life estate.13



IV.2.(a): Rights and Liabilities of Tenant for Life — Obligations and Rights



See Canadian Abridgment: REA.I.2.c.ii Real property | Interests in real property | Creation of estates | Life estate | Rights of life tenant; REA.I.2.c.iii Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities; EST.I.6.b.i.D Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Powers of life tenant




Certain persons, unless the settlement contains an express declaration that it is not lawful for them to do so, may, under certain conditions and without application to the court, demise the settled estate or any part thereof for any term not exceeding 21 years, to take effect in possession at or within one year next after the making thereof. Additional powers in respect to a demise by such persons are also provided.1



A special trusteeship arises by operation of law upon the creation of a life tenancy which does not need to be deduced from uncertain terms in the will. Fiduciary obligations of the tenant for life to the remaindermen arise. The tenant is a trustee in the sense that he or she cannot injure or dispose of the property to the detriment of the rights of the remainderman, or acquire an outstanding title for his or her own benefit, but differs from the trustee of a pure trust in that he or she may use the property for his of her exclusive benefit and take the income and profits.2



IV.2.(b): Liability for Waste



See Canadian Abridgment: REA.I.2.c.iii.A Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant | Waste; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




An estate for life without impeachment of waste will not confer upon the tenant for life any legal right to commit waste of the description known as equitable waste unless an intention to confer such right expressly appears by the instrument creating the estate.1 The Superior Court of Justice may grant an interlocutory injunction or mandatory order where it appears to a judge of the court to be just or convenient to do so.2



A plaintiff claiming an injunction for waste must specify the acts complained of as waste, as a general charge of waste is not sufficient to sustain an application for an injunction.3 An act is not waste unless it is injurious to the inheritance, either by diminishing the value of or increasing the burden on it, or by impairing the evidence of title.4



A tenant for life who cuts timber for the purpose of clearing land and bringing it under cultivation is not guilty of waste. A tenant for life does not commit waste if he or she cuts down timber on wild land for the sole purpose of bringing the land into cultivation, provided that the inheritance is not damaged and the cutting is done in accordance with the rules of good husbandry.5



Whether the act of cutting a tree in any particular case is waste depends on whether the act is consistent with what a prudent farmer would do upon his her own land, having regard to the land as an inheritance, and whether such action would diminish the value of the land as an estate.6 A tenant for life who removes stones which impede full use of the land for agriculture is not guilty of waste.7



A tenant for life who cuts timber or removes stones for the purpose of sale is guilty of waste.8 But a tenant for life who cuts timber or removes stones for the purpose of agricultural improvement and then sells the timber or stones is not guilty of waste.9



An act complained of as waste must be one that results in injury to the inheritance. "Waste" is a spoil or destruction in houses, gardens, trees or other corporeal hereditaments to the disherison of the person in remainder or reversion, or to the prejudice of the heir or reversioner.10



"Waste" is a flexible term which varies with local and other circumstances; its essence is injury to the reversion.11



Cutting down timber for use in the repair of an estate is not waste.12



Although cutting down timber without any intention of repairs, but for sale generally, is waste, nevertheless, if the cutting down and sale are originally for the purpose of repair and the sale is an economical mode of making the repairs and is for the benefit of all concerned, and if the proceeds are bona fide applied for that purpose in pursuit of the original intention, such cutting down and sale is not waste.13



A life tenant is liable for wilful or commissive waste but not for permissive waste.14 An estate for life without impeachment of waste will not confer upon the tenant for life any legal right to commit waste of the description known as equitable waste unless an intention to confer such right expressly appears by the instrument creating the estate.15



Where a testator's intention requires that an estate devised in terms larger than a mere life estate be cut down to a life estate in order to give effect to other, conflicting dispositions of the same property, such life estate will be considered as unimpeachable for waste. But where a testator devises a life estate only, with a direction that the property will be under the control of the life tenant, such direction does not change or enlarge the usual character of the life estate, and the life tenant is liable for waste.16



IV.2.(c): Right to Possession



See Canadian Abridgment: REA.I.2.c.ii Real property | Interests in real property | Creation of estates | Life estate | Rights of life tenant; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




Where a property is devised to trustees in trust for A for life, remainder over, the court in dealing with such equitable estates has a discretion as to giving possession to the life tenant.1



IV.2.(d): Right as to Management and Control of Property



See Canadian Abridgment: REA.I.2.c.ii Real property | Interests in real property | Creation of estates | Life estate | Rights of life tenant; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities



Where the intention of the testator is clear that the management and control of the testator's property are to rest with the executors, the life tenant is not entitled to management and control.1



IV.2.(e): Responsibility for Payment of Taxes



See Canadian Abridgment: REA.I.2.c.iii.C Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant | Miscellaneous; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




As between remainderman and life tenant, the interest of the life tenant is chargeable with the payment of all annual taxes imposed on the land.1



A life tenant cannot collect the rents from productive portions of lands and refuse to pay the taxes on unproductive portions.2 The person entitled to possession is the person to pay the taxes chargeable yearly on the property, and the funds out of which the taxes are ordinarily payable are the rents of the lands.3



IV.2.(f):  Responsibility for Repairs



See Canadian Abridgment: REA.I.2.c.iii.B Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant | Repairs; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




As between life tenant and remainderman, repairs necessary to overcome dilapidation are properly charged against the interest of the remainderman.1



Although it may be in the interest of a tenant for life to keep the buildings in a habitable condition, the tenant for life cannot charge that expense against the remainderman, nor can he or she be punishable for waste when repairs are not made. A tenant for life is not bound to repair fences if there is no suitable material on the property.2



IV.2.(g): Responsibility for Payment of Insurance Premiums



See Canadian Abridgment: REA.I.2.c.iii.C Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant | Miscellaneous; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




As between life tenant and remainderman, the interest of the life tenant is not to be charged with the payment of premiums on a fire insurance policy.1



IV.2.(h): Responsibility for Payment of Encumbrances



See Canadian Abridgment: REA.I.2.c.iii.C Real property | Interests in real property | Creation of estates | Life estate | Liabilities of life tenant | Miscellaneous; EST.I.6.b.i.C Estates and trusts | Estates | Legacies and devises | Nature of estate created | Life estate | Rights and liabilities




A life tenant is responsible for interest due on a a mortgage debt.1



As between remainderman and life tenant, while the life tenant is bound to pay the interest on a mortgage, the remainderman is responsible for payment of the principal.2 Prima facie, a tenant for life who pays the principal on a mortgage does so for his or her own benefit and not to exonerate the estate, and in the absence of any contrary intention on the part of the life tenant, he or she will be entitled to be subrogated to the position of the mortgagee.3



Where a life tenant makes payments on an annuity secured by a mortgage on property, the payments of the annuity must be treated partly as interest which the tenant for life must pay, and partly as principal for which the tenant has a charge on the inheritance, in the proportion which the value of the life estate bears to the value of the reversion.4





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