Nicholls Estate, Re, (1987) 18 O.A.C. 254 (CA)

• Judge: Brooke, Dubin and Krever, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 04, 1986
• Jurisdiction: Ontario
• Citations: (1987), 18 O.A.C. 254 (CA)

Nicholls Estate, Re (1987), 18 O.A.C. 254 (CA)

MLB headnote and full text

In The Matter Of the Last Will and Testament of Ethel May Nicholls, late of the Town of Shelburne, in the County of Dufferin, house-wife, deceased;

And In The Matter Of the Trustee Act, R.S.O. 1980, Chapter 512.

Indexed As: Nicholls Estate, Re

Ontario Court of Appeal

Brooke, Dubin and Krever, JJ.A.

January 30, 1987.

Summary:

A clause in the testatrix's will directed her executor to dispose of the residue of her estate according to the directions given to him from time to time by a named third party. The issue in this case was whether this clause was valid or whether the residue was to be distributed on an intestacy. The trial judge held that the clause was valid. The testatrix's next-of-kin appealed.

The Ontario Court of Appeal dismissed the appeal.

Agency - Topic 1084

Authority of agent - Express authority - Power of appointment - General v. special power of appointment - The Ontario Court of Appeal held that a general power of appointment, as contrasted with a special power of appointment, enables the holder or donee of the power to appoint to anyone and not simply in favour of certain described persons or classes of persons - See paragraph 7.

Agency - Topic 1086

Authority of agent - Express authority - Power of appointment - General power of appointment - What constitutes - A clause in a testatrix's will directed her executor to dispose of the residue of her estate according to the directions given to him from time to time by a named third party - The Ontario Court of Appeal held that the testatrix created a valid general power of appointment in the third party - See paragraph 7.

Trusts - Topic 581

Creation of trust - Certainty of beneficiary - General - A clause in a testatrix's will directed her executor to dispose of the residue of her estate according to the directions given to him from time to time by a named third party - The Ontario Court of Appeal held that the language used by the testatrix showed no intention to create a trust - See paragraph 7.

Wills - Topic 7684

Construction - Quantity of interest taken - Residuary disposition - What constitutes - A clause in a testatrix's will directed her executor to dispose of the residue of her estate according to the directions given to him from time to time by a named third party - The Ontario Court of Appeal affirmed that the clause, which created a general power of appointment, was a valid testamentary disposition of the residue - The court decided the case on the basis of the principle or policy that an individual has the right to dispose of his own assets - See paragraphs 19 to 20.

Cases Noticed:

Attorney-General v. National Provincial and Union Bank of England et al., [1924] A.C. 262, refd to. [para. 10].

Chichester Diocesan Fund and Board of Finance (Incorporated) v. Simpson et al., [1944] 2 All E.R. 60, refd to. [para. 10].

Tatham v. Huxtable (1950), 81 C.L.R. 639, refd to. [para. 11].

Lutheran Church of Australia v. Farmers' Co-operative Executors and Trustee Ltd. (1970), 121 C.L.R. 628, refd to. [para. 11].

McEwen (Deceased), McEwen v. Day et al., In re, [1955] N.Z.L.R. 575, consd. [para. 12].

Higginson v. Kerr (1898), 30 O.R. 62, consd. [para. 14].

Hayes, Re, [1938] O.W.N. 417, consd. [para. 15].

Lysiak, Re (1975), 7 O.R.(2d) 317, agreed with [para. 16].

Klassen Estate v. Klassen et al., [1986] 5 W.W.R. 746; 50 Sask.R. 64, dist. [para. 17].

Authors and Works Noticed:

Gordon, D.M., Delegation of Will-Making Power (1953), 69 L.Q.R. 334 [paras. 6, 8, 9, 12].

Gordon, D.M., Comment: Re McEwen (1955), 33 Can. Bar Rev. 955 [paras. 6, 13].

Gordon, D.M., Commentary (1955-56), 7 Res Judicatae 253 [para. 6].

Hutley, F.C., The Delegation of Will-Making Powers (1956), 2 Sydney L. Rev. 93 [para. 6].

Campbell, I.D., The Enigma of General Powers of Appointment (1955-56), 7 Res Judicatae 244 [para. 6].

Hardingham, I.J., The Rule Against Delegation of Will-Making Power (1974), 9 Melbourne U.L. Rev. 650 [para. 6].

Cullity, M.C., Fiduciary Powers (1976), 54 Can. Bar Rev. 229 [para. 6].

Uniform Wills Act, Report on the Proposed Adoption in Ontario of, Law Reform Commission (1968), p. 9 [para. 19].

Counsel:

A. Osyany, for the appellants;

J. Timmerman, for the respondent.

This appeal was heard before Brooke, Dubin and Krever, JJ.A., of the Ontario Court of Appeal on October 4, 1986. The decision of the Court of Appeal was delivered by Krever, J.A., and released on January 30, 1987.