p>A fairly recent precedent-setting BC case considers the
validity of a gift in a Will to a testamentary trust (Kellogg Estate
v. Kellogg, 2013 BCSC 2292). The deceased's Will
included a "pour-over" clause, or a clause which purports
to make a gift to an existing trust. The Court reported that it was
unable to find any BC case law dealing with a pour-over clause,
although English, Canadian and American cases were cited.
The gift was made to a trust which was in existence at the time
the Will was made, but the gift contemplated future amendments to
One problem identified by the Court with pour-over clauses is
that if the trust is amended following the date of the Will, the
amendment will usually fail to comply with the formalities set out
in the Wills Act. In this case, the trust was so
The BC Court held that the fact that the gift was made to a
trust and referred to future amendments of that trust, and the fact
that the trust was actually amended, was determinative in that the
gift could not "pour over". To allow this would have the
effect of permitting the will-maker to have essentially amended his
Will without complying with the formalities of the Wills
In the alternative, the Court was asked to consider a clause in
the Will stipulating that if the distribution to the trust was
found to be invalid, then the Executor was to distribute the gift
on terms that mirrored the trust immediately prior to its
invalidity with such trust terms having been incorporated by
reference directly into the Will. Given the court's stated
reluctance to come to a conclusion which would cause an intestacy,
it held that the property was to be held on a testamentary trust on
the same terms as set out in the trust instrument as it existed at
the time the Will was signed, i.e., ignoring the later
It should be noted that had the deceased passed away after March
31, 2014, this case would have been decided under the Wills,
Estates and Succession Act and the Court's analysis
regarding the validity of the "pour-over" clause would
have been different.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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