Goss Estate (Re), 2020 ABQB 121
In 2019, lawyer, Arlene Blake, put forward an application for advice and direction regarding an estate that dealt with the Rule Against Perpetuities. Ms. Blake was able to make a successful application utilizing her knowledge of the law and thoughtful analysis of the Rule Against Perpetuities that outlined the difficulties with carrying out the provisions in the testamentary instrument.
In January 2020 Justice R. Graesser deemed a provision of the Will to be violating the Rule Against Perpetuities, and therefore invalid. The property devised by the offending provisions was to be considered intestate and distributed in accordance with Part 3 of the Wills and Succession Act, SA 2010, c W-12.2. Since that time the case has been selected to be a part of Thomson Reuters’ Estates and Trusts Reports as well as its Litigator service.
As the court noted in the 2020 decision, cases involving the Rule Against Perpetuities are rare. Moreover, these cases are complex as the court must find a balance between upholding the testamentary intentions of the deceased and not offending the Rule Against Perpetuities.
In this case, Mr. Goss had set out a provision in his Will that created a trust. However, the conditions on which the trust was based, and was to be continued on, were argued to be violating the Rule Against Perpetuities.
For those unfamiliar with the Rule Against Perpetuities, it is a historical common law doctrine that places limitations on the types of interests that can be created by Testamentary instruments. In her Application Ms. Blake cited the description of the rule as being:
Any interest created by a will is valid if:
(a) It vests at the date the will takes effect; or
(b) It will vest, if it all, within 21 years of the death of the will-maker; or
(c) It will vest, if it all, within 21 years of some life in being at the time designated for the creation of the interest.
The Goss Estate case provides a reminder to individual testators that while your intentions to provide to many future generations may be noble, your personal representatives and legal counsel will have a difficult time enforcing these intentions if they do not account for important common law doctrines such as the Rule Against Perpetuities.
