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Option in will - is time of the essence |
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If a will contains a option to buy land at a price to be determined, and that option is exercisable within a certain time, the question then arises as to whether the grantee has to exercise the option within the specified time before the price has been determined, or whether he can wait until the price has been determined and then exercise the option out of time.
In other words, is time of the essence?
Needless to say, the answer will depend upon the construction of the individual will. However, a court will normally take the view that time is not of the essence and so the option can be exercised out of time. But, that is subject to a contrary construction (for instance, if the will specifies the consequences of a failure to exercise the option in time, or if the parties cannot be restored to the position they would have been in had the option been exercised in time). Otherwise, time will not normally be of the essence.
The real point to appreciate here is that the law on the construction of wills differs from the principles of law that apply in the law of contracts. In general contract law, time will be of the essence, since any option will normally have to be performed strictly in accordance with the prescribed terms. But, such an approach does not tie in with the modern way of interpreting wills, which is to ascertain the testator’s intention and give effect to it. Thus, the court will do what it can to comply with those intentions, and thus time will not normally be of the essence (unless the construction of the will dictates otherwise). For more on this topic see article in [2004] 59 Trusts and Estates Law & Tax Journal 4.
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September 2004 |
