Donald Estate, Re, (2005) 268 Sask.R. 290 (QB)

• Judge: Currie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 28, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 268 Sask.R. 290 (QB);2005 SKQB 332

Donald Estate, Re (2005), 268 Sask.R. 290 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. AU.020

In The Matter Of the Estate of Laura Jane Donald;

And In The Matter Of an application Pursuant to the Variation of Trusts Act, R.S.S. 1978, c. V-1.

Dennis Borys, Executor of the Estate of Laura Jane Donald (applicant/respondent) and Wesley Milton Donald by his litigation guardian, the Public Guardian and Trustee of Saskatchewan (respondent/applicant)

(2004 Q.B. No. 154; 2005 SKQB 332)

Indexed As: Donald Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Currie, J.

July 28, 2005.

Summary:

The testator named Borys as executor of her estate and as trustee and guardian for her son Wesley, a dependent adult. The testator left everything to Wesley (her only child) absolutely, but provided that Borys would hold certain lands in trust for Wesley "... for so long as he shall require the same" (clause 3(c)). Borys applied for an interpretation of clause 3(c). The Public Guardian and Trustee sought to vary the trust to enlarge Borys's powers to allow him absolute discretion in administering trust property, so that the land would not affect Wesley's entitlement to social assistance benefits.

The Saskatchewan Court of Queen's Bench interpreted clause 3(c) and refused to vary the trust.

Trusts - Topic 8005

Variation of trusts - General - Considerations - The testator named Borys as executor of her estate and as trustee and guardian for her son Wesley, a dependent adult - The testator left everything to Wesley (her only child) absolutely, but provided that Borys would hold certain lands in trust for Wesley "... for so long as he shall require the same" (clause 3(c)) - The Public Guardian and Trustee sought to vary the trust to enlarge Borys's powers to allow him absolute discretion in administering trust property, so that the land would not affect Wesley's entitlement to social assistance benefits - The Saskatchewan Court of Queen's Bench refused to vary the trust where the proposed variation might not accord with the testator's intentions - Further, the court was not satisfied that it was for Wesley's benefit - See paragraphs 15 to 23.

Trusts - Topic 8060

Variation of trusts - Grounds for variation - Benefit to beneficiaries - General - [See Trusts - Topic 8005 ].

Wills - Topic 7300

Construction - Quantity of interest taken - Absolute interest - Absolute gift - Effect of subsequent words - The testator named Borys as executor of her estate and as trustee and guardian for her son Wesley, a dependent adult - The testator left everything to Wesley (her only child) absolutely, but provided that Borys would hold certain lands in trust for Wesley "... for so long as he shall require the same" (clause 3(c)) - The Saskatchewan Court of Queen's Bench held that clause 3(c) had the following meaning: a) the testator made an absolute gift of the land to Wesley, following the period in which the trust was in force; (b) initially, to assist Wesley in dealing with the land, Borys received the land and held it in trust for Wesley for as long as Wesley continued to live there; (c) if Borys determined that it was necessary to sell the land in order to obtain funds for Wesley's benefit, he was empowered to do so, in which case the proceeds belonged to Wesley and the trust relating to the land would end; and (d) when Wesley ceased to live on the land, Borys would sell it, in which case the proceeds belong to Wesley, or to Wesley's estate if Wesley has died, and the trust relating to the land would end - See paragraphs 1 to 14.

Cases Noticed:

Allen Estate, Re, [1994] 6 W.W.R. 323; 121 Sask.R. 121 (Q.B.), refd to. [para. 7].

Belhumeur et al. v. Becker Estate, [2004] 3 W.W.R. 80; 235 Sask. R. 161; 2003 SKQB 195, refd to. [para. 19].

Counsel:

D.K. Clark, for the Estate of Laura Jane Donald;

L.J. Chomyn, for the Public Guardian and Trustee.

This application was heard by Currie, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on July 28, 2005.