Champoise v. Champoise-Prost Estate et al., (2000) 140 B.C.A.C. 112 (CA)

• Judge: Esson, Huddart and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 13, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 140 B.C.A.C. 112 (CA);2000 BCCA 426

Champoise v. Champoise-Prost (2000), 140 B.C.A.C. 112 (CA);

    229 W.A.C. 112

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. SE.019

Parris Champoise and Richard Wayne Champoise by his guardian ad litem The Public Trustee of British Columbia (plaintiffs/respondents) v. Barry Keith Prost, personally and in his capacity as Executor of the Estate of Carmen Irene Champoise-Prost aka Carmen Irene Prost (defendants/appellants)

(CA025197; 2000 BCCA 426)

Indexed As: Champoise v. Champoise-Prost Estate et al.

British Columbia Court of Appeal

Esson, Huddart and Saunders, JJ.A.

July 6, 2000.

Summary:

The deceased's sons brought an action under the Wills Variation Act to vary their late mother's will, which provided nothing for them. One son was a ward of the prov­ince with mental disabilities. As regards the other son, the defendant (the deceased's widower and executor), pleaded the existence of a secret trust, the terms of which he claimed satisfied the deceased's obligations to that son.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. B86, declined to vary the will in respect of either son. The court found the existence of a secret trust in favour of the other (non-handicapped) son, the terms of which satis­fied the deceased's obligations. The other son appealed this finding.

The British Columbia Court of Appeal allowed the appeal. While the court held that on the evidence, no secret trust existed because the certainties necessary were not found, the court varied the deceased's will to order that the estate pay the other son $65,000. The court awarded the defendant, personally and as executor, his costs of the appeal.

Family Law - Topic 6638

Dependents' relief legislation - Persons entitled to relief - Child - Adult children - The deceased did not provide for her adult son in her will, leaving everything to her husband - The value of the estate assets was approximately $93,000 and the hus­band, through right of survivorship, re­ceived assets of approximately $511,000 - The husband gifted his stepson a benefit of approximately $125,000 to $130,000 - The husband also stated his intention to transfer a further $62,353.33 to the son - The British Columbia Court of Appeal held that given the size of the estate, the deceased did not make adequate provision for the son in her will - The court varied the will to provide payment of $65,000 to the son from the estate - See paragraphs 30 to 33.

Practice - Topic 7455

Costs - Solicitor and client costs - Enti­tlement to - Estates - A disinherited son sued for variation of his late mother's will - His stepfather, the sole beneficiary and executor, claimed the existence of a secret trust, the terms of which fulfilled the mother's obligation to the son - The trial judge accepted this argument but ordered special costs against the estate - The British Columbia Court of Appeal, al­though reversing the finding on secret trust, held that the trial judge's ruling on costs was correct - The litigation arose from the way in which the mother chose to dispose of her estate - See paragraphs 34 to 36.

Trusts - Topic 1528

Secret trusts - Creation of secret trust - Elements of - The British Columbia Court of Appeal stated that a secret trust arose where a person gave property to another, communicating an intention that the prop­erty be dealt with in a specific way upon the happening of an event, and the donee accepted the obligation - The essential elements were the donor's intention, com­munication of the intention to the donee and the donee's acceptance of the obliga­tion - Also, the three certainties necessary for any express trust must be exhibited: the words making the trust must be imperative, and the subject of the trust and the object or person intended to take the benefit of the trust must be certain - Those certainties must be exhibited when the trust was created - See paragraphs 15 to 16.

Cases Noticed:

Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253; [1944] 3 D.L.R. 552 refd to. [para. 15].

Hayman v. Nicoll - see Sutherland Estate v. Nicoll Estate.

Jankowski v. Pelek Estate (1995), 107 Man.R.(2d) 167; 109 W.A.C. 167; 131 D.L.R.(4th) 717 (C.A.), refd to. [para. 15].

Ottaway v. Norman, [1971] 3 All E.R. 1325 (Ch. D.), refd to. [para. 15].

Beardmore Trusts, [1951] 1 D.L.R. 41, refd to. [para. 16].

Stein v. Ship Kathy K., [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 17].

Tataryn et al. v. Tataryn Estate, [1994] 2 S.C.R. 807; 169 N.R. 60; 46 B.C.A.C. 255; 75 W.A.C. 255; [1994] 7 W.W.R. 609, refd to. [para. 28].

Vielbig v. Waterland Estate et al. (1995), 54 B.C.A.C. 219; 88 W.A.C. 219 (C.A.), refd to. [para. 35].

Authors and Works Noticed:

Waters, D.W.M., Law of Trusts in Canada (2nd Ed. 1984), pp. 107 [para. 16]; 215, 216, 217 [para. 15].

Counsel:

R.M. Kahle, for the appellants;

R.W. McDiarmid, Q.C., for the respon­dents.

This appeal was heard at Vancouver, British Columbia, before Esson, Huddart and Saunders, JJ.A., of the British Columbia Court of Appeal on March 13, 2000. Saunders, J.A., delivered the following judgment for the Court of Appeal on July 6, 2000.