Whats interesting is that this system allows conditions to be set up but does not couch how these conditions ought to be stipulated (i.e. any condition can be set out, there is no positive requirement only a negative one).
Facts: Daddy dies, leaves wife and child behind. Will sets out that he bequeaths all his property to his executors to manage the corpus of his estate for the benefit of his daughter, so long as she shall continue to reside in Canada. She goes in and out of Canada, once for a few months, the other time for 11 months.
Issue:Does “so long as she shall continue to reside in Canada” create a defeasible interest on condition subsequent? Held: Well, not so easy. Court probably finds that she defeated the estate but feel bad for her and decide that the condition was void because it was uncertain. Rule: If the clause in question be in truth a condition subsequent, then the courts must be able to see from the beginning precisely and distinctly upon the happening of what events it is that the payments to the appellant are to cease. If it is impossible for the court to determine with any accuracy what future conduct would fall within the terms of the will, then the clause is struck out but the gift takes place.
If a clause is uncertain, its void. Gift continues if the clause is a defeasible interest on condition subsequent (if it is with respect to a determinable condition, the gift never gets off the ground).
Ratio:
(Lord Romer, 1st instance):
The testator contemplated a more restrictive meaning to this clause of his will than his daughter thinks (his daughter is asking the court to strike down this condition because she is afraid to have defeated her interest.
Appeal: The executors should decide what to do!
Rowell: there is nothing uncertain but it’s a question of fact. Must contextualize the condition and in this case it makes sense for the daughter, a single women, to leave Canada from time to time.
Latchford: Executors should apply their own judgement.
Fischer: the word permanent is a clerical error. It should say principal. It’s a question of fact that the executors should decide.
Kingstone: reside is an indefinite word but then he changed his mind that it means that she has to live in a place, namely, Canada.
Henderson: he thinks it’s a condition subsequent but it is void for uncertainty.
Oh by the way, the PC decided it was a condition subsequent but it was void for uncertainty. Yeah! We can sleep better tonight.
Clayton v Ramsden, 1943, HL; 396 – Condition (Defeasance) void for UNCERTAINTY
Facts: Father leaves will to daughter and states that the will is defeated if she marries a man that is not of Jewish parentage.
Issue: Is the will valid? Is the forfeiture clause valid? Is the condition of defeasance valid?
Held: No, no and no.
Rule: A testator can specify how they would like their will to be disposed but must do so with a high degree of precision.
Ratio (Lord Russell of Killowen):
In order for conditions of defeasance be valid, a person should be able to know with certainty the exact event of the happening of which their interests are to be divested.
From the beginning, one must be able to ascertain precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determine.
Cites Sifton v Sifton: the condition was held void because the testator did not define the purpose or period of the daughter’s leave to Canada. Hence it was uncertain.
