Mar 17, 2014

Summary of Donald Estate v. Donald

Donald Estate v. Donald, 2005 SKQB 332 (CanLII)
FIAT: This is an application pursuant to The Variation of Trusts Act. The deceased had only one child, Wesley, an adult suffering from life-long disabilities. Wesley needs help looking after himself and cannot earn an income to support him. Wesley had been receiving financial support from his parents and social assistance benefits.HELD: 1) The overriding intention of the deceased was to give Wesley everything in her estate. This conclusion is consistent with the deceased's knowledge of her son's needs and the first sentence of clause 3(c), giving the entirety of the estate to Wesley. 2) The second sentence of the clause raises the issues of interpretation. As a specific exception to a direct gift of her assets to Wesley, the deceased directs that the land is to be held 'by my Trustee in trust for the sole use and benefit of my son for so long as he shall require the same'. The parties raise the prospect that the words create only a life interest for Wesley such that a partial intestacy would arise upon Wesley's death. 3) The Court concluded that the deceased intended to make an absolute gift of the land to Wesley, but had it in her mind that Wesley would need help in dealing with the land both while he continued to own it and rent it out, and when it came time to sell it. 4) The application by the Public Guardian and Trustee to vary the trust is dismissed. The application was made to improve Wesley's long term financial position. As it stands, the value of the land will be taken into account in a determination of whether Wesley is entitled to receive social assistance benefits. If the terms of the trust were varied, the value of the land would not be taken into account and he would receive benefits. It is not enough for the proposed variation to not harm Wesley. The Court was not satisfied that it was to his benefit, given that Wesley does not need social assistance benefits.