Ellis Estate v. Ellis, Stotski and Saskatchewan Association for Mentally Retarded, (1982) 18 Sask.R. 342 (QB)

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 12, 1982
• Jurisdiction: Saskatchewan
• Citations: (1982), 18 Sask.R. 342 (QB)

Ellis Estate v. Ellis (1982), 18 Sask.R. 342 (QB)

MLB headnote and full text

Ellis Estate v. Ellis, Ellis, Stotski, Ellis and Saskatchewan Association for the Mentally Retarded

(No. 950 A.D. 1980)

Indexed As: Ellis Estate v. Ellis, Stotski and Saskatchewan Association for Mentally Retarded

Saskatchewan Court of Queen's Bench

Gerein, J.

August 12, 1982.

Summary:

The administrator of an estate applied for a determination of certain questions respecting the distribution of income in the estate. The issue was whether surplus income from trust funds should be accumulated with the trust funds or distributed to the residuary beneficiaries.

The Saskatchewan Court of Queen's Bench held that the surplus funds should be accumulated.

Family Law - Topic 3298

Separation agreements - Termination of - Death - Effect of - A husband provided a monthly allowance for his wife by will - In a subsequent separation agreement, he agreed to pay her monthly maintenance - The Saskatchewan Court of Queen's Bench held that the monthly maintenance constituted a charge on the husband's estate - The court held that the executor must create a fund to pay for the liability, which fund created a subsidiary trust - The court stated that the obligation was in the nature of an annuity - See paragraph 14.

Trusts - Topic 4086

Administration - Powers of trustee - Discretionary power - Respecting payment out of trust funds - A testator instructed his executor in his will to set aside the necessary funds to properly maintain the testator's retarded son - A second fund was created by the executor to meet the testator's maintenance obligations in a separation agreement - The Saskatchewan Court of Queen's Bench held that the discretionary payments to the son and the widow by the executor could be made either from the capital or the income of the respective funds, in the executor's discretion - See paragraph 15.

Trusts - Topic 4226

Administration - Allocation of trust funds - Accumulations - The Saskatchewan Court of Queen's Bench summarized the law respecting whether intermediate income on trust funds should be accumulated - See paragraphs 11 to 13.

Trusts - Topic 4228

Administration - Allocation of trust funds - Surplus earnings - By his will, a testator established a fund to provide a monthly annuity to his wife and a fund to provide for his retarded son - A third fund was established by his executor to meet the monthly obligations to the widow pursuant to a separation agreement - Income was earned on each fund - The Saskatchewan Court of Queen's Bench held that surplus monies on each fund must be accumulated for at least 21 years from the testator's death, rather than be distributed to the residuary beneficiaries of each fund - See paragraphs 11 to 15.

Cases Noticed:

Wharton v. Masterman, [1989] A.C. 186, appld. [para. 11].

Re Hammond, [1935] S.C.R. 550, consd. [para. 11].

Re Stevenson (1977), 69 D.L.R.(3d) 630, refd to. [para. 11].

Watson v. Conant, [1964] S.C.R. 312, appld. [para. 13].

Re Baragar (1973), 32 D.L.R.(2d) 529, refd to. [para. 13].

Re Power Estate (1964), 48 W.W.R.(N.S.) 250, refd to. [para. 13].

Re Passmore Estate (1964), 49 W.W.R.(N.S.) 588, refd to. [para. 13].

Re Stevenson (1977), 69 D.L.R.(3d) 630, refd to. [para. 13].

Re Cooper (1917), 88 L.J. Ch. 105, refd to. [para. 14].

Re Wilson's Will (1954), 11 W.W.R.(N.S.) 497, refd to. [para. 14].

Statutes Noticed:

Thellusson Act, 39 and 40 Geo. 3, c. 98 [para. 15].

Authors and Works Noticed:

Waters, D.W.M., The Law of Trusts in Canada, 1974, p. 825 [para. 14].

Williams on Executors and Administrators (13th Ed.), p. 758 [para. 14].

Counsel:

R.G. Kennedy, for the executor;

D.W. Beaubier, for the Saskatchewan Association for the Mentally Retarded;

H.R. Kloppenberg, for Margaret L. Ellis, Marion Stotski and Murray Ellis.

This application was heard before GEREIN, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon. The decision of GEREIN, J., was delivered at Saskatoon, Saskatchewan, on August 12, 1982: