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Estates - 'Rule of Convenience'

. Rivard v. Morris

In Rivard v. Morris (Ont CA, 2018) the Court of Appeal discussed the "rule of convenience", whereby - unless it is otherwise set out in the trust instrument - that interest accrues on legacies after one year of the death:
[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.

[25] This general rule has been adopted in Ontario: see Re Barton, 1940 CanLII 330 (ON CA), [1940] 4 D.L.R. 115 (Ont. C.A.), aff’d 1941 CanLII 8 (SCC), [1941] S.C.R. 426; and McDougald Estate v. Gooderham (2003), 2 E.T.R. (3d) 52 (Ont. S.C.), aff’d (2005), 2005 CanLII 21091 (ON CA), 199 O.A.C. 203 (C.A.).

[26] Rule 65.02(2) is a legislated provision to the same effect. It directs that interest is to be paid on legacies from the end of one year after the death of the deceased, unless the will directs another time for payment. Some say that r. 65.02(2) has “codified” the “rule of convenience”: see for e.g. Rocchi and Kerr, at p. 309. If the point is that r. 65.02(2) is a legislated provision that adopts the “rule of convenience”, I agree. If the point is that r. 65.02(2) has subsumed the common law rule, I do not agree. In my view, r. 65.02(2) applies where courts administer an estate, while the “rule of convenience” itself applies where personal representatives administer the estate.

[27] This limited sphere of operation for r. 65.02(2) can readily be seen when it is situated within rr. 65.01 and 65.02. Those rules provide as follows:

65.01 (1) A proceeding for the administration of the estate of a deceased person or for the execution of a trust may be commenced by notice of application,

(a) by a person claiming to be a creditor of the estate of the deceased person;

(b) by a person claiming to be a beneficiary under the will or on the intestacy of the deceased person or under the instrument of trust; or

(c) by an executor or administrator of the estate of the deceased person or a trustee.

(2) A judgment for administration of an estate (Form 65A) or for execution of a trust shall be granted only if the judge is satisfied that the questions between the parties cannot otherwise be properly determined.

(3) Where no accounts or insufficient accounts have been rendered, the judge may, instead of granting judgment for administration of the estate or for execution of the trust, order that the executors, administrators or trustees render to the applicant a proper statement of their accounts and may stay the application in the meantime. R.R.O. 1990, Reg. 194, r. 65.01 (3).


65.02 (1) A judgment for administration of an estate or for execution of a trust shall direct a reference, and the referee has power to deal with the property of the estate or trust, including power to give all necessary directions for its realization, and shall finally wind up all matters connected with the estate or trust without any further directions, except where the special circumstances of the case require interim reports or interlocutory orders.

(2) Interest on accounts taken in administration proceedings shall be computed on the debts of the deceased from the date of the judgment and on legacies from the end of one year after the death of the deceased, unless the will directs another time for payment.

(3) All money realized from the estate or trust shall forthwith be paid into court, and no money shall be distributed or paid out except by order of a judge or, on a reference, by order of the referee.
[28] It is evident from a plain, contextual reading of r. 65.02(2) that, on its own terms, it does not apply to all estate administrations. It provides for “[i]nterest on accounts taken in administration proceedings” (emphasis added), a term that, in context, describes applications governed by rr. 65.01 and 65.02, and where a referee has been appointed to wind up the estate.


(2) Did the Rule of Convenience Apply?

[40] Although the “rule of convenience” has been articulated in modestly different ways in the case law, and there is disagreement on some points, “the principle … is too well settled to admit of doubt”: Re Lightfoot, 1948 CanLII 298 (ON SC), [1948] 2 D.L.R. 418 (Ont. H.C.), at p. 420. Pursuant to this general rule, subject to terms in the will to the contrary, if a specific legacy of personal property, or a mixed fund of land and personal property, is payable under a will but is not paid to the beneficiary by the anniversary date of the death of the testator, the beneficiary will begin to earn interest on the value of the property from that date until they have received that property: Thompson Estate (Re), [1955] O.J. No. 117 (H.C.); Re Baty (1958), 13 D.L.R. (2d) 594 (Ont. H.C.), rev’d on other grounds 1958 CanLII 93 (ON CA), [1959] O.R. 13 (C.A.); and Re Lynch’s Estate (1975), 25 N.S.R. (2d) 13 (S.C. (T.D.)). As I explain below, in my view the rule goes farther and currently provides for simple interest at the rate of 5% per annum.

[41] The “rule of convenience” is sometimes explained as allowing for the payment of damages or compensation for default or delay in payment beyond the executor’s year. This was the view of the Ontario High Court’s Smily J.: Re Barr, 1947 CanLII 64 (ON SC), [1947] O.R. 96 (H.C.), at pp. 101-2, aff’d 1947 CanLII 75 (ON CA), [1947] O.R. 557 (C.A.); and Merritt Estate (Re), [1947] O.J. No. 1 (H.C.), at para. 2.

[42] In my opinion, it is neither accurate nor helpful to think of the “rule of convenience” as providing for the payment of damages or compensation for delayed payment. Explaining the rule in this way implies that interest is owed because something wrongful has occurred that has delayed payment. Yet that is not how the rule works. Under the “rule of convenience”, interest is payable even if payment within the executor’s year is impractical or impossible, and whether or not the legacy has vested: Wood v. Penoyre (1807), 13 Ves. Jr. 325, 33 E.R. 316 (Ch.); Toomey v. Tracey (1883), 4 O.R. 708 (H.C.); and Widdifield, at p. 5-6.3. Interest is payable even where payment within the first year was never expected: Walford v. Walford, [1912] A.C. 658 (H.L.); Spofford Estate; and Re Carter, [1934] O.J. No. 45 (H.C.). Indeed, interest is payable under the “rule of convenience”, “whether the assets have been productive or not”, and even where the property is incapable of earning income during the period when interest is accumulating: Pearson v. Pearson (1802), 1 Sch. & Lef. 10 (Ch. Ir.), at p.12; Sitwell v. Bernard (1801), 6 Ves. Jr. 520, 31 E.R. 1174 (Ch.); and In re Hoey (deceased), Gordon v. Russell and Others, [1944] NZLR 900 (S.C.), at p. 905.

[43] The rule has also been explained as based on the unfairness in not paying interest and thereby giving the residual beneficiary the benefit of money earned by the property designated in the legacies: Re Allen, Lewis v. Vincent (6 August 2007), Auckland, 2006-404-2312, at para. 31 (N.Z.H.C.). It is true that if this were to occur it would be unfair: Foster, at pp. 315-16. In my view, however, this potential unfairness cannot account for the “rule of convenience” since, as indicated, the “rule of convenience” applies even if the estate has not earned income or cannot earn income.

[44] As I have explained, in my view, the most historically accurate and least misleading rationale for the “rule of convenience” is that it is a mechanism for promoting the full enjoyment of specific legacies. By imposing interest payment obligations at the end of the executor’s year, specific legatees can more fully enjoy the benefits of the gifts that were intended where distribution has been delayed beyond the executor’s year.

[45] It is obvious from the little I have said that the “rule of convenience” is blunt. By design, it is intended to “exact rough justice” and achieve convenience, even though “in particular cases both convenience and justice may be disappointed”: Sitwell, at p. 540; and Rocchi and Kerr, at p. 316. It is called a “rule of convenience” because it is a simple, predictable way of achieving the generally fair outcome of providing for the payment of interest on specific legacies.

[46] The value in having a simple, predictable rule is evident when it is appreciated that the “rule of convenience” is not a litigation rule. It is a rule that is meant to be applied by personal representatives even where courts are not called upon to order interest payments. Its rigidity and simplicity are intended to ease the administration of estates by saving personal representatives from having to predict what an estate could have earned, and courts from “endless and immeasurable” inquiries into the performance of the estate, should a more complex rule operate: Sitwell, at p. 540.

[47] It is also necessary to consider estate law’s priorities, if this rule is to be fully understood. The most prevalent consideration in the law of estates is giving effect to the testator’s intention. If the testator does not consider the rule of convenience to be fair, the testator is free to oust the rule by postponing or eliminating the right to interest, or by providing for a different rate of interest, since the will is paramount: Maxwell v. Wettenhall (1722), 2 P. Wms. 26, 24 E.R. 628 (Ch.).


(3) Did the Application Judge err in Exercising Discretion not to apply the Rule of Convenience?

[51] No authority was produced before this court supporting the discretion of judges to deny interest where the “rule of convenience” applies. The brother relies upon Prong Estate (Re), 2011 ONSC 632, 65 E.T.R. (3d) 48, in support of the proposition that the “rule of convenience” should not apply where circumstances make the executor’s year unreasonable. This case did not involve the “rule of convenience”. It was about whether the appointment of the estate trustees should be revoked.

[52] There are similar cases considering the reasonableness of insistence on the executor’s year where efforts are made to require accounts to be passed, or to limit the compensation of personal representatives: see e.g. Cornish Estate (Re), 2016 PESC 14; and Cormack v. Indergaard, 2016 ABQB 544, 25 E.T.R. (4th) 142, but such decisions do not stand as authority for the discretionary application of the “rule of convenience”.

[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.

[58] On the other hand, the “rule of convenience” is a rule of equity, and discretion is a hallmark of equity. Courts should arguably have the authority to adjust a rule of equity that produces unfairness.[59] Moreover, while these provisions do not permit judges to deny interest altogether, in both England and New Zealand legislation has been passed conferring express discretion on courts to vary the rate of interest that will be paid: Civil Procedure Rules 1998 (U.K.), SI 1998 No. 3132 (L 17), Practice Direction 40A – Accounts, Inquiries etc., at para. 15;[1] and Administration Act 1969 (N.Z.), 1969/52, s. 39. To this extent, situational equity is permitted to trump certainty and simplicity.


C. What Amount of Interest is to be paid?

[74] For reasons that I will explain, it is my view that the rate of interest to be applied in this case is the 5% simple interest rate that the “rule of convenience” currently carries at common law: Kirkland (Re) (1916), 32 D.L.R. 83, at pp. 84, 87 (S.C. (A.D.)); Re Sharp, [1933] O.J. No. 158 (H.C.); and Re Carter, [1934] O.J. No. 45 (H.C.).

[75] Although the brother did not address the interest rate issue overtly, it is implicit in his position that the appropriate rate of interest should be the prejudgment interest rate provided for in s. 128 of the Courts of Justice Act, currently 0.8%. I say this because it was his contention that the discretion to pay interest on the legacies comes from the prejudgment interest provisions, and not the “rule of convenience”. I do not agree. In my view, the prejudgment interest provisions do not apply, and therefore do not direct the rate of interest that should be paid. The “rule of convenience” and the prejudgment interest provisions are distinct.

[76] First, the prejudgment interest provisions provide for the payment of interest from the date of the cause of action, whereas the “rule of convenience” supports claims that commence with the entitlement of the receipt of property.

[77] Second, the interest payments are made for different purposes. The “rule of convenience” is meant to enable the legatee to enjoy the earning potential of a property right that has arisen but is delayed, even where the delay occurred without wrongdoing. In contrast, the prejudgment interest provisions are intended to encourage the settlement of claims by those who wrongfully resist claims for the payment of money: Kinbauri Gold Corp. v. Iamgold International African Mining Gold Corporation (2004), 2004 CanLII 36051 (ON CA), 192 O.A.C. 24 (C.A.).

[78] Third, the prejudgment interest provision in s. 128 of the Courts of Justice Act presupposes a claim related to an order for the payment of money, on which the interest is added “thereon”. This means that s. 128 would not apply if the sole issue is the payment of interest on a legacy that is not in dispute.

[79] It is possible to go on. The Courts of Justice Act provisions do not operate to replace the “rule of convenience”, and there is nothing in the decision in Pizzey v. Crestwood Lake Limited (2004), 2004 CanLII 36108 (ON CA), 69 O.R. (3d) 306 (C.A.), to the contrary. That case simply holds that where no interest rate is set after a bank note matures but is not paid, and where a litigated claim has been made, a court should use the prejudgment interest regime to compensate the claimant for the interest withheld.

[80] None of this is to say that the prejudgment interest provisions never apply where there is a delay in paying legacies under a will. In St. Cyr v. Leitch, [1992] O.J. No. 2778 (C.J. (Gen. Div.)) the prejudgment interest provisions operated to require the executor to pay, out of his own pocket, prejudgment interest after improperly withholding payment. It is fitting in such circumstances that the interest be paid by the executor and not out of estate assets under the “rule of convenience”. The current point is that the prejudgment interest rate provisions do not govern interest to be paid under “rule of convenience”.

[81] Having said this, the 5% common law rate of interest is not, itself, beyond doctrinal criticism. Varying explanations for the selection of a fixed 5% simple interest rate have been offered.

[82] As Rochi and Kerr explain, at pp. 312-16, early English authority attempted to identify applicable rates of interest based on the typical earning potential of estates, in a context in which the law requires cautious investment. As a matter of convenience, rates were not set based on the earning potential of the specific estate, or the rates actually earned by the estate. Litigation was discouraged in this way, and things were kept simple. As explained by the Lord Chancellor Eldon in Sitwell, at pp. 539-40:
[I]t is a general rule, that where no interest is given by will … it is only to be allowed at 4 per cent from the end of the year; though it may appear to have produced in the period interest at 5 per cent. Particular justice is disappointed in particular cases: but upon this principle … the inquiry as to the state of the personal estate, when each and every part could be got in and made productive, is endless and immeasurable, the Court cuts the knot by doing what in general cases is convenient; though in particular cases both convenience and justice may be disappointed.
[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.


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Last modified: 25-11-22
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