Introduction to Conditional estates p. 380

1. 
   Condition precedent:
   
   1. 
      A condition of eligibility that must be satisfied before the grantee has any rights of enjoyment at all.
      
   2. 
      To A at 21
      
   3. 
      To B for life if she should marry Y.
      
   4. 
      Until A is 21 or until B marries Y, their interests are “contingent interests” until they receive the grant
      
   5. 
      If either dies before the condition is met, the interest is extinguished, nothing passes to the heirs.
      
   6. 
      At 21, the interest becomes vested.
      
   7. 
      If the Clause is invalid: gift is destroyed
      
   8. 
      When the condition is ambiguous, the courts allow early vesting.
      
      1. 
         Mackay v Nagle, 1988: did the word living mean children alive at the time the will took effect or did it mean living at the time the widow’s life estate expired? Uncertainty in the word LIVING. Therefore, the courts decided the interest should vest early.
         
2. 
   Determinable fee (like condition subsequent, except is something less than full fee simple)
   
   1. 
      Aka FEE SUBJECT TO A LIMITATION
      
      1. 
         The grantor gave away the estate only if the condition is met ab initio.
         
      2. 
         Automatically ended if the event specified occurs.
         
         1. 
            Automatic.
            
      3. 
         If clause is invalid (void due to public policy or uncertainty) the whole estate fails.
         
3. 
   Conditions subsequent (aka condition of defeasance): Right exists, this is ways to take it back.
   
   1. 
      It is a condition of defeasance – the condition can defeat the estate
      
      1. 
         Defeats an estate that has already vested
         
   2. 
      To C in fee simple but only if he never becomes a member of a Law Society
      
      1. 
         So if C becomes a lawyer, the interest extinguishes.
         
   3. 
      If on the other hand C dies in possession (she never became a lawyer), then his heirs inherit a fee simple absolute.
      
   4. 
      Also known as a FEE SIMPLE DEFEASIBLE ON CONDITION SUBSEQUENT.
      
   5. 
      Aka FEE SIMPLE VESTED SUBJECT TO DIVESTMENT
      
      1. 
         The grantor gave away the full estate, but provided for the possibility of later termination via the condition.
         
      2. 
         Grantor has a right of re-entry, if the estate condition fails, grantor has the choice of getting it back. He has a right but not an obligation to end the grantee’s estate.
         
         1. 
            Called a possibility of “reverter”
            
      3. 
         If the clause is invalid, the condition is struck but the grantee gets / takes the estate free of the condition.
         
4. 
   Both fees (fee simple defeasible on condition subsequent and fee subject to a limitation) are subject to public policy and uncertainty test.
   

• 
  A determinable fee: the determining event in a determinable fee itself sets the limit for the estate first granted.
  
  • 
    Buzzwords: while, during, as long as, until.
    
• 
  A condition subsequent (fee simple defeasible on condition subsequent): is an independent clause added to a “limitation of a complete fee simple absolute” which operates so as to defeat it. It kills the interest when the condition is met.
  
  • 
    Buzzwords: provided that, on condition that, but if, if it happens that...
    

The will states: I bequeath….that the trustee shall hold the property as a home for MK until her death or until she is not residing therein personally, whichever shall first occur, then to Carrie Leftdahl…

• 
  Must interpret the expressed intentions not the intentions as the testator may have intended (this is weird).
  
• 
  This is more than a personal licence because there is a maintenance fund set aside, creating a home.
  

• 
  Is it determinable or defeasible (fee simple defeasible on condition subsequent)?
  
• 
  A Condition/Subsequent: is an independent clause added to a complete fee simple absolute which operates to defeat it.
  
  • 
    The condition is voidable if it is impossible, but the gift remains.
    
  • 
    Is an add-on. The interest exists, the question is how does it die.
    
• 
  A determinable fee sets the limit for the estate to be granted in the first place.
  
  • 
    The condition is voidable but the interest fails entirely.
    
  • 
    It is a necessary part of the interest (it is how the interest gets life)
    
• 
  Here, the words “until her death” are an external limitation that terminates the interest.
  
• 
  Therefore it’s an interest upon a condition (i.e. defeasible on condition subsequent).
  
• 
  What is the court doesn’t approve of the grant…does the judge have the latitude to interpret the conditions? [YES].