Pour-Over Clause

Quinn Estate | 2018 BCSC 365 | British Columbia Supreme Court

Estates -- Testamentary instruments -- What constituting testamentary instrument

Deceased, citizen of Canada and United States (US), made will providing that residue of his Canadian estate was to "pour-over" to revocable, amendable, inter vivos family trust which was settled by him and his spouse shortly before will was executed -- Family trust was subsequently amended in order to ensure compliance with US treasury regulations -- Executor of deceased’s estate sought determination as to whether pour-over clause in his will for Canadian assets was invalid, and, if so, whether it was cured by s. 58 of Wills, Estates and Succession Act -- Pour-over clause invalid -- Possible use of revocable, amendable, inter vivos trust as recipient of testamentary gift, bequest, or devise creates uncertainty that legislature sought to avoid by requiring particular formalities for proper execution of will -- Pour-over clause was invalid and was not cured by s. 58 of Act -- There was no evidence that deceased intended family trust to have testamentary character -- Family trust was revocable, amendable, inter vivos trust with deceased being one of two settlors and trustees -- By providing for its own amendment or revocation by deceased and his spouse, family trust created mechanism to avoid execution strictures of s. 37 of Act -- Such provisions for revocation or amendment did not reflect requisite "deliberate or fixed and final intention" for testamentary dispositions -- Residue of deceased’s estate was to be distributed on intestacy in accordance with Pt. 3 of Act.