Anne Saxer wanted to leave of portion of her waterfront land near Nanaimo, B.C. to her grand-nephew Ulrich Saxer when she died. Under her will, another portion of her land would go to the city for use as a park, and the rest of the land to Georgine Allen-Newman, whom Anne Saxer appointed as her executor. Ms. Allen-Newman would need to subdivide the land to give Ulrich Saxer his portion. It was not certain whether she would be able to obtain subdivision approval. Accordingly, in the will, Anne Saxer, provided for a gift of $200,000 for Mr. Saxer if he did not receive his portion within five years of Anne Saxer’s death (this period was extended by court order).
The will provided that the costs of subdivision would be paid out of Anne Saxer’s estate. But what about property taxes on the land? The will was silent on whether Mr. Saxer would have to pay any of the property taxes from the time of Anne Saxer’s death until he received the property. This was significant because Anne Saxer died in February, 2006, but it took until August 25, 2009 to subdivide the lot for Ulrich Saxer. There was a dispute between the executor and Mr. Saxer concerning what costs he was responsible for, and he had not yet received the lot as of the date of hearing, March 29, 2011. The executor refused to convey the lot to Mr. Saxer until he reimbursed the estate for a number of expenses, including a portion of the property taxes for the land reflecting the lot he inherited...
Mr. Justice Blok, in Saxer v. Saxer Estate, 2011 BCSC 584, noted that the law is that when the executor assents to a specific gift of property in a will (by transferring the property to the beneficiary or providing the beneficiary with a transfer), the assent relates back to the date of death, and the beneficiary is entitled to any profits from the property, but is responsible for expenses for the maintenance of that property, from the date of death.
But in this case, it was by no means certain at the date of death that Mr. Saxer would receive the property. If the executor could not get approval for the subdivision, he would receive $200,000 instead of the property. The gift was contingent on the land being subdivided in the manner set out in Anne Saxer’s will.
Mr. Justice Blok held that Mr. Saxer would not be entitled to any income from the property before the land was subdivided, and should not be responsible for the expenses related to the maintenance of the land until the contingency was removed. Accordingly, Mr. Saxer was not responsible for the property taxes until the lot he will receive was created. Mr. Saxer will be responsible for the property taxes on his lot from the time it was created in August 2009.