What is the test for abrogation of a clause in a precluded condition in a testamentary notice of death?
Ontario, Canada
The following excerpt is from Wade (Re), 2008 CanLII 56707 (ON SC):
Where it is doubtful whether a condition be precedent or subsequent the court prima facie treats it as being subsequent, for there is a presumption in favour of early vesting. There is significant legal significance to whether a condition is precedent or subsequent. If the condition is subsequent, early vesting of the estate is considered the more important object to fulfill and any clause of abrogation will fail: See Sifton v. Sifton, 1938 CanLII 110 (UK JCPC), [1938] A.C. 656, 3 All E.R. 435, O.R. 529, 3 D.L.R. 577 (P.C.) at para. 29.
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