Interest on Legacies

In British Columbia, if a legacy is not paid within one-year of the will-maker’s death, the beneficiary is entitled to interest at a rate of 5% per year from the first anniversary of the date of death. This rule applies unless the will provides that no interest is payable or provides for a different rate. In my experience, most will-makers do not address this issue in their wills.

The first year is sometimes referred to as the “executor’s year.” The notion is that an estate will be administered in about one year, but in practice estates often take longer to administer. The time is likely to be drawn-out much longer if there is litigation.

This rule was considered and explained in an Ontario case, Rivard v. Morris, 2018 ONCA 181 (CanlII). Alexander Rivard died on October 24, 2013. In his last will, he left legacies of $530,000 to each of his two daughters and his farm land to his son. His daughters unsuccessfully challenged the will. As a result of the dispute, the two daughters did not receive their legacies until October 24, 2016. They sought interest on the legacies but the Ontario Superior Court denied interest, reasoning that it was the daughter’s actions in challenging the will that caused the delay.

In allowing the daughters’ appeal, and awarding them interest, Mr. Justice Paciocco explained the rationale for the rule:

[22]      Centuries ago, Ecclesiastical courts in England developed a practice of giving personal representatives one year after the death of the deceased to wind up the estate. To this day, it is still presumed, including in Ontario, that estates will be wrapped up within the “executor’s year”: Carmen S. Thériault, Widdifield on Executors and Trustees, loose-leaf (2016-Rel. 11), 6th ed. (Toronto: Carswell, 2016), at pp. 5-6.3 to 5-6.4. This involves calling in the assets of the deceased, paying off the estate debts, and converting the remaining assets to enable bequests and legacies to be distributed according to the will, and then doing so.

[23]      For more than two centuries, the law of equity has recognized a related rule, often referred to as the “rule of convenience.” According to this related rule, described in more detail below, “where no special time is fixed for the payment of a legacy, it carries interest ... from the expiration of a year from the testator’s death”: Widdifield, at p. 5-6.3. See also: James MacKenzie, Feeney’s Canadian Law of Wills, loose-leaf (2016-Rel. 64-9), 4th ed. (Toronto: Lexis-Nexis, 2000), at p. 8.22. This rule was thoroughly reviewed in the 1997 article by Rosanne T. Rocchi and Michael W. Kerr, “Legacies: A Matter of some Interest” (1997), 16 E. & T.J. 305 (“Rocchi and Kerr”).

[24]      The “rule of convenience” can be easily explained, in my view. One of the maxims of equity is that it presumes as being done that which ought to be done. Since the beneficiaries should be enjoying the earning power of their legacies by at least the anniversary date of the testator’s death, where that enjoyment is postponed and the testator has not provided an alternative date for payment of the legacy, interest is to be paid: Hutcheon v. Mannington(1791), 1 Ves. Jr. 366, at p. 367, 30 E.R. 338 (Ch.); and Elwin v. Elwin (1803), 8 Ves. Jr. 547, at p. 557, 37 E.R. 467 (Ch.). This does not mean that the interest is itself a legacy: Foster v. Wyles, [1938] 1 Ch.  313, at p. 316. It does mean that equity takes steps to put the legatee in the position they would have been in had the legacy been distributed as the testator, not having set a different date for distribution, is presumed to have intended.

According to Mr. Justice Paciocco, the rule of convenience is not tied to the conduct of the personal representative or the beneficiaries. It applies even if it is not possible to pay the legacy within a year of death. Although he did  not rule out the possibility that a judge might have discretion to deny interest, he emphasized the importance of certainty in the application of the rule, and held that even if there is discretion, the Superior Court Judge erred in principle in tying interest to whether it was reasonable for the two daughters to expect payment within a year in this case.

With respect to the question of whether there is a discretion, Mr. Justice Paciocco wrote:

[53]      As explained, the “rule of convenience” is not predicated on the possibility of payment within the executor’s year. The “rule of convenience” applies even where payment within the executor’s year is impossible. It would involve a significant realignment of the rule, in my view, to permit courts to choose whether to pay interest based on how reasonable it is to expect the distribution of property within the executor’s year to occur.

[54]      No relevant Canadian cases supporting the discretion to deny interest have been found. No English cases doing so have been uncovered either. Re Allen, at para. 32, cites an unreported New Zealand decision, Cook v. Cook (20 April 2004), Greymouth, 2001-418-000004, that apparently recognizes a discretion to deny interest but Re Allen disapproves of Cook v Cook on the basis that the decision was made without supporting authority. After a close examination of the case law, the court in Re Allen, at para. 33, held that “unless the will provides otherwise, a legatee has a right to interest on the legacy as from the end of the executors’ year”.

[55]      The reason there may be no authority supporting a discretion to deny interest may simply be that discretion is seen to be undesirable in this context. In Re Beech, Saint v. Beech, [1920] 1 Ch. 40, at p. 44, quoted in Re Parry, Brown v. Parry, [1947] Ch. 23, at p. 47, Eve J. appears to explain why:

[A] departure from a salutary rule in matters of this kind – introducing as it does an element of uncertainty in practice and administration – can only be justified if the changed conditions on which it is founded continue at least as constant as those upon which the rule was itself framed.

[56]      Expressing the same sentiment in more modern language, certainty is critical to the simplicity and the efficacy of a rule that is most often applied, not by courts, but by personal representatives. It is one thing to identify fixed exceptions to the “rule of convenience”. It is another to leave the operation of the “rule of convenience” free floating. Doing so would undercut its function as a “rule of convenience”.

[57]      In addition, the “rule of convenience” is predicated on what a testator, presumed to know the law, is presumed to intend where they have not opted out of the rule. Denying discretion is arguably a better way of having testators, rather than executors or courts, determine how to distribute their property, including the payment of interest on legacies.

Mr. Justice Paciocco acknowledged that five percent is a high rate in this age of low inflation and investment returns, but the rate for the “rule of convenience,” was not argued in this case, and Mr. Justice Paciocco declined to adjust it. His discussion of the rate is also quite interesting, and I will quote part of it:

[83]      Initially interest amounts varied modestly over time - between 4% and 6% over three centuries - but the rates are now set by statute in England. The rates are regularly reviewed by the Lord Chancellor with the concurrence of the Treasury and are linked to the interest payable on money paid into court. Currently the rate of interest is negligible: 0.1%.

[84]      Conversely, as Rocchi and Kerr explain, at p. 312: “In Ontario, 5% appears to have been the accepted rate, but the cases do not demonstrate any suggestion that the rate is tied to an anticipated rate of return”. Not surprisingly, over the centuries there have been anomalous decisions where judges have applied different rates of interest close to that amount, but judges in these cases tend not to purport to be exercising a case by case consideration. Instead, they appear to have been attempting to define an appropriate general rate at the time: see for e.g. Re Nathanson, 1946 CanLII 104 (ON SC), [1946] O.R. 421 (H.C.).

[85]      Some Canadian cases that have applied a 5% rate appear simply to have been mimicking the English practice of the day, while others tie the rate of interest expressly or by implication to the legal interest rate provided for in s. 3 of the Interest Act, R.S.C., 1985, c. I-15: Lynch’s Estate; and MacIntyre Estate, Re (1989), 92 N.S.R. (2d) 110 (Prob. Ct.). In Merritt Estate, Smily J. commented, at para. 4, that “it is well established that [the rate of interest] should be the legal rate, which is 5%.” Section 3 of the Interest Act  provides:

Whenever any interest is payable by the agreement of parties or by law, and no rate is fixed by the agreement or by law, the rate of interest shall be five per cent per annum.

[86]      It can be seen, then, that the 5% interest rate is not grounded in a uniform or compelling legal basis.  Moreover, a policy case can be made that courts should move away from the 5% rate. Arguably, the current practice of imposing an interest rate that is materially out of line with the market interest rate is not in keeping with the underlying purpose of the “rule of convenience” of ensuring that legatees enjoy the earning potential of a property right that has arisen where enjoyment has been delayed. Perhaps the English example should be followed of using a periodically adjusted but fixed statutory interest rate by analogy for the “rule of convenience”, such as the rates provided for in the prejudgment interest provisions, the postjudgment interest provisions or the rate set under r. 53 of the Rules of Civil Procedure for prejudgment interest on non- pecuniary damages.

[87]      This, however, is not the case for deciding whether such a change should be made. We have not been asked to readjust the rate used under the “rule of convenience,” and we have not been presented with argument on this issue. Even though a 5% interest rate may seem aggressive relative to the current prime rate, given the state of authority and the manner in which this case was presented before us, I see no reason to deviate from the established 5% rate in this case.

In the result, each of Alexander Rivard’s daughters is entitled to $53,000 in interest on her legacy, being two years at 5% per year.