What is the purpose of the first part of clause 3(a)?

Given this legal background, it is clear, as is now mutually accepted by the parties, the purpose of the first part of clause 3(a) is to negate the applicability of the rule in Howe v. Lord Dartmouth. It is then the rule that gives meaning to the words in that part of the clause.

As the judge stated, it is common ground that it is not necessary to go beyond the four corners of the will to interpret the meaning of clause 3(a). The testator’s intention can be determined solely from the wording employed read in the context of the whole of the will. For present purposes, it is then not necessary to give consideration to the circumstances prevailing at the time the will was made: Smith v. Smith Estate, 2010 BCCA 106 at paras. 18 and 28.

The beneficiaries contend the judge’s interpretation can stand even if he failed to take the rule in Howe v. Lord Dartmouth into account; its application was negated by the opening words of clause 3(a). This is said to be so because it does not necessarily follow that the opening words created an independent power to retain as the trustee saw fit as opposed to an independent obligation to retain until the estate was ultimately wound up. Put differently, negating the application of the rule does not mean the testator intended his investments to be subject to a power to retain as opposed to an obligation to do so. It is said either would suffice to exclude the rule in Howe v. Lord Dartmouth, and there is no reason to discount the judge’s interpretation in favour of the interpretation for which the trustee contends.