Paterson v. Paterson Estate, (1996) 109 Man.R.(2d) 294 (QB)

• Judge: Jewers, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 18, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 109 Man.R.(2d) 294 (QB)

Paterson v. Paterson Estate (1996), 109 Man.R.(2d) 294 (QB)

MLB headnote and full text

Elizabeth Ellen Paterson, by her true and lawful Attorney, Robert Pearson (applicant) v. The Estate of Alexander Hopson Paterson (respondent)

(Suit No. 95-01-91346)

Indexed As: Paterson v. Paterson Estate

Manitoba Court of Queen's Bench

Jewers, J.

April 18, 1996.

Summary:

Paterson's executrix and trustee was given uncontrolled discretion to use the income and capital of the estate for the care of Paterson's mother. The executrix did not use the income and capital for the care of Pater­son's mother because she believed the mother had sufficient means to take care of herself. The mother applied for an order that the executrix had to pay the income and if necessary the capital of the estate for her maintenance.

The Manitoba Court of Queen's Bench dismissed the mother's application.

Executors and Administrators - Topic 2220

Duties and powers of executors and ad­ministrators - Powers - Discretionary power - Exercise of - Paterson's executrix and trustee was given uncontrolled discre­tion to use the income and capital of the estate for the care of Paterson's mother - When the mother died, the executrix would get 60% of the estate residue - The ex­ecutrix did not use the income and capital for the mother's care because she believed the mother had sufficient means to take care of herself - The mother applied for an order that the executrix pay for her maintenance out of the income and capital - The Manitoba Court of Queen's Bench held that the executrix had an uncontrolled discretion to use all, part or none of the money for the mother's needs - The court declined to interfere with the executrix's discretion where she was acting in good faith.

Trusts - Topic 4086

Administration - Powers of trustee - Discretionary power re payment out of trust funds - [See Executors and Admin­istrators - Topic 2200 ].

Cases Noticed:

Schipper v. Guaranty Trust Co. of Canada (1989), 35 O.A.C. 238; 33 E.T.R. 149 (C.A.), refd to. [para. 1].

Hinton v. Canada Permanent Trust Co. (1979), 5 E.T.R. 117 (Ont. H.C.), refd to. [para. 17].

Counsel:

K.R.P. Kirby, for the applicant;

W.P. Narvey, for the respondent.

This application was heard before Jewers, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on April 18, 1996.