N.S., Re,

• Jurisdiction: Nova Scotia
• Judge: Smith
• Neutral Citation: 2007 NSSC 288
• Citation: (2007), 258 N.S.R.(2d) 280 (SC),2007 NSSC 288,258 NSR(2d) 280,(2007), 258 NSR(2d) 280 (SC),258 N.S.R.(2d) 280
• Date: 05 October 2007
• Court: Supreme Court of Nova Scotia (Canada)

N.S., Re (2007), 258 N.S.R.(2d) 280 (SC);

    824 A.P.R. 280

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. OC.008

In The Matter Of an application of S.D. and D.T., Trustees, on behalf of N.S. and A.J. (infants);

 

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

(S.H. 272215; 2007 NSSC 288)

Indexed As: N.S., Re

Nova Scotia Supreme Court

Smith, A.C.J.

October 5, 2007.

Summary:

Two minors were each gifted shares of an estate to be held in trust until they reached age 19. The trusts' present value was over $1 million each. The trustees and the beneficiaries' litigation guardian applied to vary the trusts to delay the capital distribution to age 25 and to make each beneficiary, at the age of 19, a co-trustee.

The Nova Scotia Supreme Court allowed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Trusts - Topic 8060

Variation of trusts - Grounds for variation - Benefit to beneficiaries - General - Two minors were each gifted shares of an estate to be held in trust until they reached age 19 - The trusts' present value was over $1 million each - Raising concerns about the beneficiaries inheriting such substantial amounts of money at age 19, the trustees and the beneficiaries' litigation guardian applied to vary the trusts to delay the capital distribution to age 25 and to make each beneficiary, at the age of 19, a co-trustee in order to provide them with exposure to the funds' management - The Nova Scotia Supreme Court allowed the application - Delaying the capital distribution in this manner to provide the skills necessary to manage such an inheritance was very much to the beneficiaries' benefit - While there was a possible disadvantage in that market conditions might cause the trusts' values to decline during those six years, the advantages outweighed any possible disadvantage - The intention of the testator was maintained - Further, the beneficiaries retained the right to apply at age 19 under the rule in Saunders v. Vautier (1841 Ch. D.) to terminate the trusts and have the funds paid out to them.

Cases Noticed:

T.'s Settlement Trusts, Re, [1964] 1 Ch. 158, refd to. [para. 9].

Purves et al., Re (1984), 14 D.L.R.(4th) 738 (B.C.S.C.), refd to. [para. 9].

Irving, Re (1976), 66 D.L.R.(3d) 387 (Ont. H.C.), refd to. [para. 12].

Russ v. Public Trustee (B.C.) et al. (1994), 43 B.C.A.C. 209; 69 W.A.C. 209; 3 E.T.R.(2d) 170 (C.A.), refd to. [para. 14].

Spencer Estate, Re (1969), 1 N.S.R.(2d) 282 (T.D.), refd to. [para. 17].

Weston's Settlements, Re, [1968] 3 All E.R. 338 (C.A.), refd to. [para. 17].

Remnant's Settlement Trusts, Re, [1970] 2 All E.R. 554, refd to. [para. 18].

Zekelman, Re (1971), 19 D.L.R.(3d) 652 (Ont. H.C.), refd to. [para. 19].

Westminster et al. v. Royal Trust Company (1972), 7 N.S.R.(2d) 664 (S.C.), refd to. [para. 19].

Charlesworth Estate, Re, [1996] 5 W.W.R. 578; 108 Man.R.(2d) 228 (Q.B.), refd to. [para. 19].

Druce's Settlement Trusts, Re, [1962] 1 All E.R. 563, refd to. [para. 23].

Holt's Settlement, Re, [1969] 1 Ch. 100 (Ch. D.), refd to. [para. 30].

Saunders v. Vautier, [1835-42] All E.R. 58 (Ch. D.), refd to. [para. 36].

Buschau et al. v. Rogers Communications Inc. et al., [2006] 1 S.C.R. 973; 349 N.R. 324; 226 B.C.A.C. 25; 373 W.A.C. 25; 2006 SCC 28, refd to. [para. 36].

Counsel:

Timothy C. Matthews, Q.C., for the applicant trustees;

T. Peter Sodero, Q.C., litigation guardian and solicitor for the infant beneficiaries.

This application was heard by Smith, A.C.J., of the Nova Scotia Supreme Court, who delivered the following decision on October 5, 2007.