Today’s blog was written by guest blogger, Yvonne Mazurak, Articling Student at Fasken LLP.
With today being Black Friday, it seemed appropriate to write a post about things. Afterall, many of us will likely spend some time this weekend taking advantage of Black Friday deals and buying things for our loved ones (and possibly for ourselves as well).
Personal items, or personalty, can be bequeathed to beneficiaries through the use of personalty clauses. For example, such a clause might read: “My Trustees shall give my Rolex watch to my daughter, Mrs. Clause, if she survives me.”
In a handful of cases involving personalty clauses, some have argued that particular items belonging to the deceased should fall outside of the scope of the personalty clause of their will. Here are two interesting examples:
Parrag Estate (Re)
In this decision of the former Supreme Court of Ontario – High Court of Justice, the issue was whether the testator’s coin collection was captured by a bequest to his only child of “all clothing, jewelry, personal effects, household goods and furniture” that he owned on the date of his death. The value of the collection, in 1983, was $52,320.00.
In considering whether the coin collection—effectively a “collection of money”—fell within the scope of “personal effects,” as opposed to being considered a security, the court commented:
7 Gold coins collected as a hobby have been held to be “personal effects”: re Collins (1971), 1 All E.R. 283. The undisputed facts are that the testator was a collector of art works, jewellery and antiquities of various kinds but I agree with Mr. Glass that the coins were more likely collected as moveable security than for either their artistic or sentimental value. I agree that the nature of the collection seems inconsistent with a hobbyist’s interest which Mr. Glass describes as the “bringing together of a wide range of curious and interesting examples”. However, that they do not fall within the category of a hobbyist’s collection does not put the coins beyond the ambit of the term “personal effects”. It merely fails to confirm that they are within it.
Nevertheless, it was the overall context of the will that made the final determination. Because of an additional clause that was interpreted to provide such context, the coins passed to the testator’s son under the will’s personalty clause.
Zeitler v. Zeitler Estate
In this case, the British Columbia Supreme Court dealt with the question of whether a deceased’s gun collection fell within the meaning of “household furnishings” under s. 96 (as it was at the time) of the B.C. Estates Administration Act. If it did, it would have gone to the intestate deceased’s former spouse, and if not, it would have gone to the residue of his estate.
Though not involving a personalty clause, Zeitler is an interesting case in this context for the court’s commentary on the classification of personal items into different categories of assets:
35 In my view, the definition of household furnishings as “chattels usually associated with the enjoyment by the spouses of the spousal home” precludes such chattels that have as their predominant characteristic “personal effects” or “personal chattels” and are without a household use or a recognizable connection to the use, enjoyment or proper functioning of the spousal home.
36 For example, an art collection belonging to one spouse and stored in crates in the basement of the spousal home, likely constitutes part of that spouse’s personal effects, but if all or the majority of the art collected was hung throughout the spousal home, then the same could legitimately be recognized as part of its “household furnishings.”
39 By definition, gun collections, like stamp collections, jewellery collections, art collections and the like, are, in the context of s. 96 of the EAA, the personal property of the person who collected them and to whom they belong, unless that predominant characteristic is overcome by their enjoyment by the spouses of the spousal home.
These and other cases offer useful insight into some of the factors and questions to consider when interpreting a personalty clause, and, as a result, can also serve as a reminder of the importance of discussing our clients’ intentions when preparing wills with such clauses.
Happy (online) shopping!
 Parrag Estate (Re) (1983),  OJ No 49, 22 ACWS (2d) 249 (Ont SC (HCJ)) [Parrag Estate].
 Ibid at para 3.
 Ibid at paras 7.
 Zeitler v Zeitler Estate, 2009 BCSC 500, 92 BCLR (4th) 102 [Zeitler].
 Ibid at para 33.
 Ibid at paras 35-36, 39.