MacNeil Estate, Re, (2015) 367 N.S.R.(2d) 171 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 26, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 367 N.S.R.(2d) 171 (SC);2015 NSSC 326

MacNeil Estate, Re (2015), 367 N.S.R.(2d) 171 (SC);

    1157 A.P.R. 171

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.034

In the Matter Of: The Variation of Trusts Act, being Chapter 486, R.S.N.S., 1989, as amended

And In The Matter Of: An Application of Hunter Bettens, as beneficiary, for a variation of the testamentary trust created under the Will of Donald Pius MacNeil

(SN. 441787; 2015 NSSC 326)

Indexed As: MacNeil Estate, Re

Nova Scotia Supreme Court

LeBlanc, J.

November 19, 2015.

Summary:

The applicant, a beneficiary, applied under the Variation of Trusts Act to vary a testamentary trust created under his godfather's last will and testament.

The Nova Scotia Supreme Court allowed the application.

Trusts - Topic 8051

Variation of trusts - Grounds for variation - General - The Nova Scotia Supreme Court, per LeBlanc, J., reviewed the principles applicable on an application for a variation of trust provisions under the Variation of Trusts Act - LeBlanc, J., stated: "To summarize, I must first consider whether the proposed variation is consistent with the settlor's intentions. If it is not, I may nonetheless grant the requested relief so long as the remaining two factors are fulfilled, i.e. the proposed variation would in some way benefit the applicant, and it would achieve a fit and just result in all the circumstances. I must also consider the position of the trustee, the position of all of the beneficiaries, and the position of any other person appearing before the Court on the application" - See paragraphs 6 to 11.

Trusts - Topic 8060

Variation of trusts - Grounds for variation - Benefit to beneficiaries - General - A testator provided that the residue of his estate was to be divided equally between his godchildren, Bettens and Timmerman - Bettens' share was to be held in trust until he was 23 - If Bettens died before age 23, his share was to go to Timmerman - When Bettens was 16 he applied to vary the trust so that he could receive part of the funds to pay his tuition at a private boarding school - Bettens litigation guardian agreed to maintain life insurance against Bettens' life - The Nova Scotia Supreme Court granted the variation - See paragraphs 12 to 22.

Cases Noticed:

N.S., Re (2007), 258 N.S.R.(2d) 280; 824 A.P.R. 280; 2007 NSSC 288, refd to. [para. 7].

S.D., Re - see N.S., Re.

Drescher Estate, Re (2007), 260 N.S.R.(2d) 328; 831 A.P.R. 328; 2007 NSSC 352, refd to. [para. 9].

Bethel Estate, Re (2015), 363 N.S.R.(2d) 251; 1143 A.P.R. 251; 2015 NSSC 216, refd to. [para. 10].

Forsythe Estate, Re (2001), 192 N.S.R.(2d) 283; 599 A.P.R. 283; 2001 NSSC 37, refd to. [para. 12].

Statutes Noticed:

Variation of Trusts Act, R.S.N.S. 1989, c. 486, sect. 2, sect. 3 [para. 6].

Counsel:

Sean D. MacDonald, for the applicant;

Frank Gillis, Q.C., for the Estate of Donald Pius MacNeil.

This application was heard on August 26, 2015, in Sydney, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on November 19, 2015.