The will of the deceased taxpayer devised a life interest in some lands (the "home quarter") to his wife and the residue of his estate (including some additional lands) to his four children. 2 1/2 years after his death his wife obtained a court order pursuant to the Family Relief Act (Alberta) granting her the fee simple in the home quarter. At the same time, the additional lands were sold with the consent of the adult children and the proceeds distributed to them.
In finding that there had been an immediate indefeasible vesting of the additional lands in the children Joyal J. noted that no condition or limitation was imposed in the will itself on the devise of the residue and found that such devise was sufficient to constitute a "transfer" of property in the additional lands to the children notwithstanding that the lands never were conveyed to them.
In rejecting a submission of the Crown that the personal representative of the estate must take a positive action to "transfer or distribute" legal title or physical possession before the beneficiaries under the will could be said to have obtained any property rights, Heald J.A. found that beneficial entitlement in the real estate arose on death and not at some later date pursuant to s. 3 of the Devolution of Real Property Act (Alberta). In addition, there was an immediate vesting of the real property because there was no condition precedent to be fulfilled before the devise took effect and there were no prior interests in existence; and the vested interest of the children was not defeasible since it was not subject to any condition subsequent contained in the will.