Hessian, Re, (1996) 153 N.S.R.(2d) 122 (SC)

• Judge: Hall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 07, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 153 N.S.R.(2d) 122 (SC)

Hessian, Re (1996), 153 N.S.R.(2d) 122 (SC);

    450 A.P.R. 122

MLB headnote and full text

In The Matter Of the Variation of Trusts Act, R.S.N.S. 1989, c. 486

And In The Matter Of a Trust Fund for Robert Hessian, of Vaughans, in the County of Hants, Province of Nova Scotia

And In The Matter Of an application by Robert Hessian to vary the trust under the Variation of Trusts Act, R.S.N.S. 1989, c. 486

(1996 S.K (W) 5687)

Indexed As: Hessian, Re

Nova Scotia Supreme Court

Hall, J.

June 19, 1996.

Summary:

After a young hockey player suffered severe head injuries, a trust fund was estab­lished through public donations for his medical and related expenses. When the funds were not required for these purposes, the trustees successfully applied for an order varying the trust. The funds were used to purchase an annuity providing the hockey player with a monthly income for his life and on his death, the remaining capital to the Nova Scotia Head Injury Association. Five years later, the hockey player applied to vary the trust.

The Nova Scotia Supreme Court dismissed the application.

Trusts - Topic 301

Creation of trust - General - The Nova Scotia Supreme Court stated that "[a] trust is created where one person holds property for another subject to conditions. No special form of words is necessary to form a trust, indeed, the trust may be express or implied. At least three elements must exist, however, to establish a trust: (1) the words used must be imperative or obligatory; (2) the property or subject matter of the trust must be certain; and (3) the persons intended to have the benefit of the trust must be certain" - See paragraph 19.

Trusts - Topic 8007

Variation of trusts - General - Jurisdiction - A young hockey player suffered severe head injuries - A trust fund was estab­lished through public donations for his medical and related expenses - The funds were not required for these purposes - A 1991 order varied the trust - The funds were used to purchase an annuity giving the hockey player a monthly income for his life and on his death, the remaining capital to the Nova Scotia Head Injury Association - Five years later, the hockey player applied to vary the trust - The Nova Scotia Supreme Court determined that the 1991 court order terminated the original trust and created a new trust - There was statutory authorization for vari­ation of the new trust, but only where there was a material change in circum­stances and variation was for the benefit of the beneficiary - See paragraphs 3 to 28.

Trusts - Topic 8056

Variation of trusts - Grounds for variation - Changed circumstances - Public dona­tions established a trust fund for the medi­cal expenses of a young hockey player who had sustained severe head injuries - The funds were not required for these purposes - The trustees successfully applied for an order varying the trust - The funds purchased an annuity giving the hockey player a monthly income for life and on his death, the capital to the Nova Scotia Head Injury Association - Five years later, the young hockey player wanted to establish a facility for the re­covery of brain injured persons - He applied to vary the trust - The Nova Scotia Supreme Court declined to vary the trust - There was no evidence of the req­uisite material change in circumstances and the proposed variation would not benefit the other beneficiary, namely, the Nova Scotia Head Injury Association.

Trusts - Topic 8060

Variation of trusts - Grounds for variation - Benefit to beneficiaries - General - [See Trusts - Topic 8056 ].

Cases Noticed:

Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 98 N.S.R.(2d) 429; 263 A.P.R. 429 (C.A.), refd to. [para. 22].

Crosby, Harold E., Receiver of Ray Realty Co. v. Pinhey (1976), 21 N.S.R.(2d) 622; 28 A.P.R. 622 (T.D.), refd to. [para. 23].

Spencer Estate, Re (1969), 1 N.S.R.(2d) 282 (T.D.), refd to. [para. 28].

T.'s Settlement Trusts, Re, [1963] 3 All E.R. 759, refd to. [para. 28].

Towler's Settlement Trusts, Re - see T.'s Settlement Trusts, Re.

Ball's Settlement Trusts, Re, [1968] 2 All E.R. 438, refd to. [para. 29].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 15.07, rule 15.08 [para. 17].

Variation of Trusts Act, R.S.N.S. 1989, c. 486, sect. 2, sect. 3 [para. 16].

Counsel:

Terry Potter, for the applicant;

Geoffrey P. Regan, for the Trustees;

Grant Walker, for Manulife Financial.

This application was heard on February 7, 1996, at Windsor, Nova Scotia, before Hall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 19, 1996.