1. Introduction
Lewis v Jack[1] is an odd case. It concerns the entitlement of a beneficiary to one-half of the residue of an estate. The beneficiary survived the testator, but died before the executor distributed the estate. My concern about the decision is that the court failed to discuss or even mention the law of assent. In my opinion it should have done so.
2. Facts
The testator, Kenneth Jack, died in October 2018, leaving a Will in which he names his two adult sons, Travis and Jason, as beneficiaries, (a) of the contents of his home, and (b) of the residue. He names Travis his executor and Travis was granted probate in May 2019. The most significant asset of the estate is a ranch property. It was run by Travis and Jason, and both lived there when Kenneth died and had done so for many years.
Clause 3 of the Will leaves all the estate to the executor in trust. Subclause (a) contains the standard discretionary provision for the realization of the estate; subclause (b) contains the standard direction to pay debts, funeral and testamentary expenses, taxes, and fees. Subclauses (c) and (d) are somewhat unusual. They provide (with emphasis supplied):
(c) To divide the contents of my home between my children then alive as they may agree and in default of agreement as my Trustee may decide.
(d) To divide the residue of my estate then remaining into as many equal shares as there shall be children of mine then alive and to give absolutely one (1) such equal share to each child.
Jason died on 24 February 2023, intestate and without children. At that point, Travis had not distributed the assets. Cecelia Miller, the ex-wife of Kenneth and the mother of both Travis and Jason, was granted administration of Jason’s estate in July 2023. She brought an application for a declaration that, properly construed, the Will provides that the residue of Kenneth’s estate vested immediately on Kenneth’s death, and that Jason’s share was not divested when he died.
The chambers judge dismissed Cecelia’s application.[2] The judge recognised that under the ‘usual rule’ the class of beneficiaries is determined at the death of the testator. However. the judge concluded that the language of the Will, specifically the use of the word ‘then’, means that this determination must take place at the time of distribution because it is then that the division of the property and the gift to Kenneth’s children ‘then alive’ takes place. The judge also took the view that the phrase ‘then remaining’ is consistent with a sequential interpretation of all the subordinate clauses, including subclause (d). In the judge’s opinion, the division of the residue into equal shares to the children ‘then alive’ can only happen once there is a residue of the ‘then remaining’ estate, and the residue only exists after payment of all debts, taxes, and expenses. Since Jason was not alive at that point in time, the judge held that his estate was not entitled to share in the residue. Cecelia appealed.
The Court of Appeal allowed the appeal. Madam Justice Fisher, who wrote the judgment for the court, paid particular reference to cases[3] which emphasize the presumption of early vesting and hold that a testamentary gif is presumed to vest on the testator’s death unless the will clearly shows a contrary intention. Thus, for example, if the gift is to a life tenant and then to a remainderer,[4] and if the remainderer dies during the life tenancy, his interest is not lost but remains effective, absent a contrary intention in the will. Justice Fisher held that the chambers judge erred in the interpretation of clause 3(d) and in holding that the executor was required to exercise his powers sequentially. In her opinion, the chambers judge ignored the context of the Will as a whole. She held that the testator intended to make provision for all his children who survived him. Consequently, she held that Jason’s estate was also entitled to his half of the residue.
3. Discussion
I take no issue with the court’s interpretation of the language of the Will, but I have a concern with its conclusion that the interests of both sons ‘vested’ on the testator’s death. I do not doubt that the law prefers (and I agree) that testamentary interests of the beneficiaries should be determined as soon as possible. But it is the word ‘vested’ that is the problem because it fails to take account of the law of assent.
These are my reasons. The law is very clear that when a person dies, whether testate or intestate, her assets vest in her personal representative (‘PR’). In other words, the PR receives the full unbifurcated title so that he can properly administer the estate. The PR must have full title to the estate to pay debts, expenses, taxes, fees, and other liabilities. Only when he has done that can he begin to distribute the assets as the will directs. But in paying all the liabilities, he is entitled to resort, if necessary, to all the assets. It is true that the PR resorts first to non-specifically given assets, then to legacies, then to bequests, and finally to devises of real property. But clearly, in an insolvent estate, all of the assets may have to be used to pay the liabilities.
What this means is that beneficiaries under the will, whether of specific gifts or of the residue cannot claim to be entitled to the gifts left to them in the will until all the liabilities have been satisfied and the PR assents. And therefore, in my opinion, it is wrong to say that their interests are ‘vested’ on the testator’s death.
I have written at great length about the PR’s title in my article, ‘Locus of Title in an Unadministered Estate and the Law of Assent,[5] and shall not rehash that topic here. Instead, I refer the reader to my article. However, I draw attention to the fact that the article discusses a large number of cases which recognize the PR’s title. The leading modern case discussed is Commissioner of Stamp Duties (Queensland) v Livingston.[6]
But the question then arises, how do the beneficiaries acquire the property left to them by will, assuming that they have not been used to pay the liabilities. This is where the law of assent comes into play. In discussing this law, I shall draw on my article just mentioned, but I also refer the reader to it for further detail.[7]
So, what is ‘assent’? The word can be either a noun or a verb. As a noun it refers to a statement or act of a PR by which she indicates that certain property which forms part of the assets of the estate is not, or is no longer, needed to discharge the estate’s liabilities. The assent can be formal such as a signed document or it can be informal, such as an oral statement by the PR. However, in England an assent with respect to real property must be made in writing.[8] Whether that is also the case in Canada is unclear.[9] The effect of the assent is to release the property to the beneficiary to whom it was left in the will. It is only at that point that the beneficiary can get his hands on the property. An assent will be unnecessary if the PR transfers the property to the beneficiary. And an alternative to an assent is an ‘appropriation’. That occurs when the PR sets aside a specific portion of the estate so satisfy an absolute devise, bequest, or legacy. Justice Gillese referred to it in the following passage from 909403 Ontario Ltd v DiMichele:[10]
104 A contingent beneficial interest in an estate does not give rise to a property interest in any specific asset of the estate, prior to or absent an appropriation of such asset to the beneficiary by the trustee.
Note that, strictly speaking, an assent is not made to a named beneficiary. Rather, the PR assents to a gift in the will, so that it can take effect as intended by the will.[11]
I mentioned that an assent refers to a statement or act of the PR. However, an assent can also be implied. In fact, much of the case law on assent is concerned with circumstances in which there has not been a formal or informal assent. This typically happens when the PR has fully paid the estate’s obligations and then holds the assets in his capacity as trustee for the beneficiaries. If that took place some time ago, the court is likely to infer that an assent has taken place. The leading case is Attenborough v Solomon.[12] Fourteen years after the testator’s death, and after the two executors paid all the debts and passed their accounts, one of them, without the other’s knowledge, improperly pledged some silver plate. The house of Lords found that there had been an implied assent. And since the executors then held title as trustees, both of them would have had to make the decision to pledge the plate. Since that did not happen, the other executor and a successor executor were able to recover the plate. For another recent case of an implied assent, see Seo Teong Kang v Seah Yong Chwan.[13]
In my article I discuss a large number of Canadian cases that address the issue of assent.[14] Some of those were early cases, but there are also more recent cases,[15] including a Supreme Court of Canada case.[16] Indeed, the law of assent formed part of the former British Columbia Estate Administration Act.[17]
What does all this mean for the nature of the beneficiary’s property? I have argued that it is wrong to say that, absent a contrary intention in the will, title to specific gifts ‘vests’ in the beneficiaries at the time of the testator’s death. Nonetheless, they have some kind of interest in the property. In Livingston[18] Viscount Radcliffe calls the right ‘a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate’. In other words, a beneficiary has a right against the PRs to have the estate properly administered, and that right is transmissible to another on the beneficiary’s death.[19] Further, this right is coupled with the right to have the moneys or other property left to the beneficiary in the will paid or transferred to her when the administration is complete.[20] Particularly in respect of specific gifts it might, therefore, be best to describe such a beneficiary’s interest as inchoate, for she does not yet have the equitable title to the property. Indeed, an early text stated:
The bequest of a legacy, whether it be general or specific, transfers only an inchoate property to the legatee; to render it complete and perfect the assent of the executor is required.[21]
What this means is that the assent does not confer a new title on the beneficiary, because she takes her title from the will. Rather, the assent makes her inchoate title absolute and ends the executor’s title to the property. The executor then holds title to the property as trustee for the beneficiary and she can bring proceedings against the trustee for a transfer of the property to her.
Since an assent perfects the title of a specific beneficiary, his title relates back to the death of the testator.[22] That means that he is then entitled to all profits generated since the testator’s death, but he is also liable for any expenses incurred after the assent, and possibly also for costs associated with the property incurred since the testator’s death.[23]
The situation may be different for gifts of residue, since the residue does not exist at the testator’s death. On this issue I refer to Nitikman’s argument discussed below.[24]
But the question is, how does all of this affect the claim of Jason’s estate to one-half of the residue. It is clear that Travis did not make an assent before Jason died. However, he had about four years to administer the estate. The case does not make clear whether Travis had paid all the estate’s liabilities by the time Jason died. Could it be argued that Travis was dilatory in his duties? The law is clear that a PR cannot withhold his assent without good reason, and if he does withhold it unreasonably, the court can compel him to make his assent.[25]
If Travis’s actions are not improper, it would thus seem that Jason’s estate would not be entitled to one-half of the residue, contrary to the holding of the Court of Appeal. But query whether the court could nonetheless direct Travis to assent on the ground that Jason’s right to one-half of the residue, albeit subject to the payment of liabilities, was determined at the time of the testator’s death? And thus, the assent could be made subject to a charge for any money that Travis has to pay to satisfy liabilities. It is of interest that section 79 of the former Estate Administration Act[26] makes provision for an assent in respect of a devise of real estate, and subsection (4) provides:
At any time after the end of one year from the death of the owner of any real estate, if the person’s personal representatives have failed on the request of the person entitled to the real estate to convey the real estate to that person, on the application of that person and after notice to the personal representatives, the court may order that the conveyance be made.
Can this be extended also to a transfer of the residue? In this regard, I note that Nitikman makes a strong argument to the effect that although residue does not exist at the testator’s death, ‘it is the Will that is the operative instrument to confer beneficial ownership of the residue’, and therefore ‘an assent to residue should operate retroactively to the date of death to confer a proprietary interest on the residual legatee’.[27]
Although the Estate Administration Act was repealed by the Wills, Estates and Succession Act,[28] (‘WESA’) Nitikman notes that section 162(3) of the latter Act provides that all common law rules that apply to the administration of personal property by an executor apply to land. Thus, although WESA does not mention assent, he concludes that an assent will be required of land as well as of personal property.[29]
—
[1] 2026 BCCA 18.
[2] 2025 BCSC 343.
[3] E.g., Duffield v Duffield (1829), 3 Bli NS 260 4 ER 1334 (HL); Bullock v Downes (1860), 9 HL Cas 1 (QB); Brown v Moody, [1936] AC 635; National Trust Co Ltd v Fleury, [1965] SCR 817, as well as a number of legal treatises.
[4] This term may strike the reader as odd, but I proposed it an earlier article to replace the former term, remainderman. In that article, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316, footnote 13, I said:
Remainderman is clearly no longer appropriate in 2016; the circumlocution, ‘the persons entitled to the remainder’ is awkward; and one certainly doesn’t want to employ the silly remainder person, although I have seen it used. Moreover, the suffix –er (or –yer in some cases) is a very convenient one, with strong Anglo-Saxon antecedents, to convert inanimate objects into animate ones involving human actors, e.g., park/parker, hunt/hunter, law/lawyer, farm/farmer, etc. And we already have a well-known cousin of remainderer that employs that suffix, namely, reversioner. Quod erat demonstrandum.
[5] (2018), 48 Adv Q 41.
[6] [1965] AC 694 (PC).
[7] I also refer to the following helpful sources: WJ Williams, The Law Relating to Assent (London: Butterworth & Co (Publishers) Ltd, 1947), (‘Williams, Assent’), and Joel Nitikman, ‘The forgotten law of assent’ (2012), 18 Trusts & Trustees, No 7, 672 (‘Nitikman’).
[8] Administration of Estates Act 2025, 15 & 16 Geo 5, c 23, s 36(4).
[9] But see text at footnote 29, infra.
[10] 2014 ONCA 261.
[11] Williams, Assent, supra, footnote 7, p 97.
[12] [1913] AC 76 (HL).
[13] [2015] SGCA 48 (Singapore CA).
[14] See footnote 5, supra, pp 68-70.
[15] Dushinsky Estate v MNR, [1990] @ CTC 2012; Re Assaly, 2022 ONSC 2219, citing my article
[16] Fitzgerald v MNR, [1949] SCR 453, para 4, where Justice Rand stated, ‘At common law a legatee could not bring an action against an executor before at least the executor assented to the legacy; and a fortiori that rule is applicable where the bequest is residual and unascertained’.
[17] RSBC 1996, c 122, s 79.
[18] Footnote 6, supra, p 717.
[19] On this point, see Re Leigh’s Will Trusts, Handyside v Durbridge, [1970] 1 Ch 277, at 281-82, per Buckley J.
[20] See Dr Barnado’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts, [1921] 2 AC 1, p 8.
[21] Toller, Law of Executor, 6th ed (1827, p 306, quoted in Williams, Assent, footnote 7, pp 2 and 21.
[22] Saxer v Saxer, 2011 BCSC 584, para 35.
[23] Ibid.
[24] See text at footnote 27, infra.
[25] Reznick v Matty, 2013 BCSC 1346.
[26] Footnote 17, supra.
[27] Nitikman, footnote 7, supra, p 676.
[28] SBC 2009, c 13, s 191.
[29] Nitikman, footnote 7, supra, p 682, footnote 55.
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Written by: Albert Oosterhoff
Posted on: April 30, 2026
Categories: Commentary, WEL Newsletter
1. Introduction
Lewis v Jack[1] is an odd case. It concerns the entitlement of a beneficiary to one-half of the residue of an estate. The beneficiary survived the testator, but died before the executor distributed the estate. My concern about the decision is that the court failed to discuss or even mention the law of assent. In my opinion it should have done so.
2. Facts
The testator, Kenneth Jack, died in October 2018, leaving a Will in which he names his two adult sons, Travis and Jason, as beneficiaries, (a) of the contents of his home, and (b) of the residue. He names Travis his executor and Travis was granted probate in May 2019. The most significant asset of the estate is a ranch property. It was run by Travis and Jason, and both lived there when Kenneth died and had done so for many years.
Clause 3 of the Will leaves all the estate to the executor in trust. Subclause (a) contains the standard discretionary provision for the realization of the estate; subclause (b) contains the standard direction to pay debts, funeral and testamentary expenses, taxes, and fees. Subclauses (c) and (d) are somewhat unusual. They provide (with emphasis supplied):
(c) To divide the contents of my home between my children then alive as they may agree and in default of agreement as my Trustee may decide.
(d) To divide the residue of my estate then remaining into as many equal shares as there shall be children of mine then alive and to give absolutely one (1) such equal share to each child.
Jason died on 24 February 2023, intestate and without children. At that point, Travis had not distributed the assets. Cecelia Miller, the ex-wife of Kenneth and the mother of both Travis and Jason, was granted administration of Jason’s estate in July 2023. She brought an application for a declaration that, properly construed, the Will provides that the residue of Kenneth’s estate vested immediately on Kenneth’s death, and that Jason’s share was not divested when he died.
The chambers judge dismissed Cecelia’s application.[2] The judge recognised that under the ‘usual rule’ the class of beneficiaries is determined at the death of the testator. However. the judge concluded that the language of the Will, specifically the use of the word ‘then’, means that this determination must take place at the time of distribution because it is then that the division of the property and the gift to Kenneth’s children ‘then alive’ takes place. The judge also took the view that the phrase ‘then remaining’ is consistent with a sequential interpretation of all the subordinate clauses, including subclause (d). In the judge’s opinion, the division of the residue into equal shares to the children ‘then alive’ can only happen once there is a residue of the ‘then remaining’ estate, and the residue only exists after payment of all debts, taxes, and expenses. Since Jason was not alive at that point in time, the judge held that his estate was not entitled to share in the residue. Cecelia appealed.
The Court of Appeal allowed the appeal. Madam Justice Fisher, who wrote the judgment for the court, paid particular reference to cases[3] which emphasize the presumption of early vesting and hold that a testamentary gif is presumed to vest on the testator’s death unless the will clearly shows a contrary intention. Thus, for example, if the gift is to a life tenant and then to a remainderer,[4] and if the remainderer dies during the life tenancy, his interest is not lost but remains effective, absent a contrary intention in the will. Justice Fisher held that the chambers judge erred in the interpretation of clause 3(d) and in holding that the executor was required to exercise his powers sequentially. In her opinion, the chambers judge ignored the context of the Will as a whole. She held that the testator intended to make provision for all his children who survived him. Consequently, she held that Jason’s estate was also entitled to his half of the residue.
3. Discussion
I take no issue with the court’s interpretation of the language of the Will, but I have a concern with its conclusion that the interests of both sons ‘vested’ on the testator’s death. I do not doubt that the law prefers (and I agree) that testamentary interests of the beneficiaries should be determined as soon as possible. But it is the word ‘vested’ that is the problem because it fails to take account of the law of assent.
These are my reasons. The law is very clear that when a person dies, whether testate or intestate, her assets vest in her personal representative (‘PR’). In other words, the PR receives the full unbifurcated title so that he can properly administer the estate. The PR must have full title to the estate to pay debts, expenses, taxes, fees, and other liabilities. Only when he has done that can he begin to distribute the assets as the will directs. But in paying all the liabilities, he is entitled to resort, if necessary, to all the assets. It is true that the PR resorts first to non-specifically given assets, then to legacies, then to bequests, and finally to devises of real property. But clearly, in an insolvent estate, all of the assets may have to be used to pay the liabilities.
What this means is that beneficiaries under the will, whether of specific gifts or of the residue cannot claim to be entitled to the gifts left to them in the will until all the liabilities have been satisfied and the PR assents. And therefore, in my opinion, it is wrong to say that their interests are ‘vested’ on the testator’s death.
I have written at great length about the PR’s title in my article, ‘Locus of Title in an Unadministered Estate and the Law of Assent,[5] and shall not rehash that topic here. Instead, I refer the reader to my article. However, I draw attention to the fact that the article discusses a large number of cases which recognize the PR’s title. The leading modern case discussed is Commissioner of Stamp Duties (Queensland) v Livingston.[6]
But the question then arises, how do the beneficiaries acquire the property left to them by will, assuming that they have not been used to pay the liabilities. This is where the law of assent comes into play. In discussing this law, I shall draw on my article just mentioned, but I also refer the reader to it for further detail.[7]
So, what is ‘assent’? The word can be either a noun or a verb. As a noun it refers to a statement or act of a PR by which she indicates that certain property which forms part of the assets of the estate is not, or is no longer, needed to discharge the estate’s liabilities. The assent can be formal such as a signed document or it can be informal, such as an oral statement by the PR. However, in England an assent with respect to real property must be made in writing.[8] Whether that is also the case in Canada is unclear.[9] The effect of the assent is to release the property to the beneficiary to whom it was left in the will. It is only at that point that the beneficiary can get his hands on the property. An assent will be unnecessary if the PR transfers the property to the beneficiary. And an alternative to an assent is an ‘appropriation’. That occurs when the PR sets aside a specific portion of the estate so satisfy an absolute devise, bequest, or legacy. Justice Gillese referred to it in the following passage from 909403 Ontario Ltd v DiMichele:[10]
104 A contingent beneficial interest in an estate does not give rise to a property interest in any specific asset of the estate, prior to or absent an appropriation of such asset to the beneficiary by the trustee.
Note that, strictly speaking, an assent is not made to a named beneficiary. Rather, the PR assents to a gift in the will, so that it can take effect as intended by the will.[11]
I mentioned that an assent refers to a statement or act of the PR. However, an assent can also be implied. In fact, much of the case law on assent is concerned with circumstances in which there has not been a formal or informal assent. This typically happens when the PR has fully paid the estate’s obligations and then holds the assets in his capacity as trustee for the beneficiaries. If that took place some time ago, the court is likely to infer that an assent has taken place. The leading case is Attenborough v Solomon.[12] Fourteen years after the testator’s death, and after the two executors paid all the debts and passed their accounts, one of them, without the other’s knowledge, improperly pledged some silver plate. The house of Lords found that there had been an implied assent. And since the executors then held title as trustees, both of them would have had to make the decision to pledge the plate. Since that did not happen, the other executor and a successor executor were able to recover the plate. For another recent case of an implied assent, see Seo Teong Kang v Seah Yong Chwan.[13]
In my article I discuss a large number of Canadian cases that address the issue of assent.[14] Some of those were early cases, but there are also more recent cases,[15] including a Supreme Court of Canada case.[16] Indeed, the law of assent formed part of the former British Columbia Estate Administration Act.[17]
What does all this mean for the nature of the beneficiary’s property? I have argued that it is wrong to say that, absent a contrary intention in the will, title to specific gifts ‘vests’ in the beneficiaries at the time of the testator’s death. Nonetheless, they have some kind of interest in the property. In Livingston[18] Viscount Radcliffe calls the right ‘a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate’. In other words, a beneficiary has a right against the PRs to have the estate properly administered, and that right is transmissible to another on the beneficiary’s death.[19] Further, this right is coupled with the right to have the moneys or other property left to the beneficiary in the will paid or transferred to her when the administration is complete.[20] Particularly in respect of specific gifts it might, therefore, be best to describe such a beneficiary’s interest as inchoate, for she does not yet have the equitable title to the property. Indeed, an early text stated:
The bequest of a legacy, whether it be general or specific, transfers only an inchoate property to the legatee; to render it complete and perfect the assent of the executor is required.[21]
What this means is that the assent does not confer a new title on the beneficiary, because she takes her title from the will. Rather, the assent makes her inchoate title absolute and ends the executor’s title to the property. The executor then holds title to the property as trustee for the beneficiary and she can bring proceedings against the trustee for a transfer of the property to her.
Since an assent perfects the title of a specific beneficiary, his title relates back to the death of the testator.[22] That means that he is then entitled to all profits generated since the testator’s death, but he is also liable for any expenses incurred after the assent, and possibly also for costs associated with the property incurred since the testator’s death.[23]
The situation may be different for gifts of residue, since the residue does not exist at the testator’s death. On this issue I refer to Nitikman’s argument discussed below.[24]
But the question is, how does all of this affect the claim of Jason’s estate to one-half of the residue. It is clear that Travis did not make an assent before Jason died. However, he had about four years to administer the estate. The case does not make clear whether Travis had paid all the estate’s liabilities by the time Jason died. Could it be argued that Travis was dilatory in his duties? The law is clear that a PR cannot withhold his assent without good reason, and if he does withhold it unreasonably, the court can compel him to make his assent.[25]
If Travis’s actions are not improper, it would thus seem that Jason’s estate would not be entitled to one-half of the residue, contrary to the holding of the Court of Appeal. But query whether the court could nonetheless direct Travis to assent on the ground that Jason’s right to one-half of the residue, albeit subject to the payment of liabilities, was determined at the time of the testator’s death? And thus, the assent could be made subject to a charge for any money that Travis has to pay to satisfy liabilities. It is of interest that section 79 of the former Estate Administration Act[26] makes provision for an assent in respect of a devise of real estate, and subsection (4) provides:
At any time after the end of one year from the death of the owner of any real estate, if the person’s personal representatives have failed on the request of the person entitled to the real estate to convey the real estate to that person, on the application of that person and after notice to the personal representatives, the court may order that the conveyance be made.
Can this be extended also to a transfer of the residue? In this regard, I note that Nitikman makes a strong argument to the effect that although residue does not exist at the testator’s death, ‘it is the Will that is the operative instrument to confer beneficial ownership of the residue’, and therefore ‘an assent to residue should operate retroactively to the date of death to confer a proprietary interest on the residual legatee’.[27]
Although the Estate Administration Act was repealed by the Wills, Estates and Succession Act,[28] (‘WESA’) Nitikman notes that section 162(3) of the latter Act provides that all common law rules that apply to the administration of personal property by an executor apply to land. Thus, although WESA does not mention assent, he concludes that an assent will be required of land as well as of personal property.[29]
—
[1] 2026 BCCA 18.
[2] 2025 BCSC 343.
[3] E.g., Duffield v Duffield (1829), 3 Bli NS 260 4 ER 1334 (HL); Bullock v Downes (1860), 9 HL Cas 1 (QB); Brown v Moody, [1936] AC 635; National Trust Co Ltd v Fleury, [1965] SCR 817, as well as a number of legal treatises.
[4] This term may strike the reader as odd, but I proposed it an earlier article to replace the former term, remainderman. In that article, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316, footnote 13, I said:
Remainderman is clearly no longer appropriate in 2016; the circumlocution, ‘the persons entitled to the remainder’ is awkward; and one certainly doesn’t want to employ the silly remainder person, although I have seen it used. Moreover, the suffix –er (or –yer in some cases) is a very convenient one, with strong Anglo-Saxon antecedents, to convert inanimate objects into animate ones involving human actors, e.g., park/parker, hunt/hunter, law/lawyer, farm/farmer, etc. And we already have a well-known cousin of remainderer that employs that suffix, namely, reversioner. Quod erat demonstrandum.
[5] (2018), 48 Adv Q 41.
[6] [1965] AC 694 (PC).
[7] I also refer to the following helpful sources: WJ Williams, The Law Relating to Assent (London: Butterworth & Co (Publishers) Ltd, 1947), (‘Williams, Assent’), and Joel Nitikman, ‘The forgotten law of assent’ (2012), 18 Trusts & Trustees, No 7, 672 (‘Nitikman’).
[8] Administration of Estates Act 2025, 15 & 16 Geo 5, c 23, s 36(4).
[9] But see text at footnote 29, infra.
[10] 2014 ONCA 261.
[11] Williams, Assent, supra, footnote 7, p 97.
[12] [1913] AC 76 (HL).
[13] [2015] SGCA 48 (Singapore CA).
[14] See footnote 5, supra, pp 68-70.
[15] Dushinsky Estate v MNR, [1990] @ CTC 2012; Re Assaly, 2022 ONSC 2219, citing my article
[16] Fitzgerald v MNR, [1949] SCR 453, para 4, where Justice Rand stated, ‘At common law a legatee could not bring an action against an executor before at least the executor assented to the legacy; and a fortiori that rule is applicable where the bequest is residual and unascertained’.
[17] RSBC 1996, c 122, s 79.
[18] Footnote 6, supra, p 717.
[19] On this point, see Re Leigh’s Will Trusts, Handyside v Durbridge, [1970] 1 Ch 277, at 281-82, per Buckley J.
[20] See Dr Barnado’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts, [1921] 2 AC 1, p 8.
[21] Toller, Law of Executor, 6th ed (1827, p 306, quoted in Williams, Assent, footnote 7, pp 2 and 21.
[22] Saxer v Saxer, 2011 BCSC 584, para 35.
[23] Ibid.
[24] See text at footnote 27, infra.
[25] Reznick v Matty, 2013 BCSC 1346.
[26] Footnote 17, supra.
[27] Nitikman, footnote 7, supra, p 676.
[28] SBC 2009, c 13, s 191.
[29] Nitikman, footnote 7, supra, p 682, footnote 55.
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