Gift of Land Clause (Free of Encumbrances) (BC)

Summary

This clause transfers any interest the will-maker has in specified lands and buildings to the beneficiary, free of any financial encumbrances. This clause includes practical guidance and drafting notes. At common law, gifts of land are referred to as "devises" and abate last. The term "devise" is no longer typically used in "plain language" wills. Moreover, under the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the "WESA"), s. 50(4), the preference given to gifts of land at common law has been eliminated with the result that they abate on the same basis as personal property. There are however some remaining important distinctions with respect to land and, in particular, land which is the subject of a security interest. Previously, under s. 30 of the Wills Act, R.S.B.C. 1996, c. 489 (now repealed), where a will-maker made a gift of land that is subject to a mortgage, and there was no contrary intention in the Will, the gift was made subject to that mortgage and the beneficiary...