Rogers Estate, Re, 2006 NBQB 423

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 27, 2006
• Jurisdiction: New Brunswick
• Citations: 2006 NBQB 423;(2006), 313 N.B.R.(2d) 282 (TD)

Rogers Estate, Re (2006), 313 N.B.R.(2d) 282 (TD);

    313 R.N.-B.(2e) 282; 809 A.P.R. 282

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.B.R.(2d) TBEd. JA.022

In the Matter Of The Estate of H. David Rogers;

And In The Matter Of an Application pursuant to rule 16.04 of the Rules of Court and, in the alternative, under section 5 of the Provision for Dependants Act.

Carol Duplessis, Executrix of The Estate of H. David Rogers (applicant) v. Jeffrey Benjamin Rogers and Michael Day, by his litigation guardian and mother, Tracey E. Day Labobe, and Rose Marie Rogers (respondents)

(S/M/9/06; 2006 NBQB 423)

Indexed As: Rogers Estate, Re

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

October 25, 2006.

Summary:

A father's will left his estate in equal shares to his two sons, to be held in trust until they reached the age of 45. The father died in March 2005. His sons were now aged 17 and 23 respectively. There was a gift over. The executrix applied to the court for advice and directions, particularly whether (1) the will restricted the distribution of the estate to the sons until they reached age 45 and (2) if so, whether the restriction failed under the rule in Saunders v. Vautier or the Rule against Accumulations.

The New Brunswick Court of Queen's Bench, Trial Division, held that the will restricted distribution until age 45 and the restriction did not offend the rule in Saunders v. Vautier or the Rule against Accumulations.

Executors and Administrators - Topic 2001

Duties and powers of executors and administrators - General - General duties - The New Brunswick Court of Queen's Bench, Trial Division, stated that it was appropriate for an executor or executrix of an estate to seek an interpretation or direction from the court respecting a provision of a will - An executor's primary function was to enforce the wishes of the testator - It was not appropriate for an executor or executrix to bring an application on behalf of beneficiaries - Beneficiaries should make their own application - See paragraphs 13 to 14.

Perpetuities - Topic 7021

Restriction of accumulation - Limits of period of accumulation - General - A father's will left his estate in equal shares to his two sons, to be held in trust until they reached the age of 45 - The will also provided for a gift over - The father died in March 2005 - His sons were now aged 17 and 23 respectively - The executrix applied to the court for advice and directions, particularly whether (1) the will restricted the distribution of the estate to the sons until they reached age 45 and (2) if so, whether the restriction was void because of the rule in Saunders v. Vautier or the Rule against Accumulations - The New Brunswick Court of Queen's Bench, Trial Division, held that the will restricted distribution until age 45 and the rule in Saunders v. Vautier and the Rule against Accumulations did not apply where there was a gift over - The testator's intentions were to be complied with.

Trusts - Topic 8445

Termination of trusts - By request of beneficiary - On agreement of all beneficiaries - [See Perpetuities - Topic 7021 ].

Wills - Topic 7350

Construction - Quantity of interest taken - Trusts - Beneficiaries - Rights of - [See Perpetuities - Topic 7021 ].

Cases Noticed:

Forbes Estate, Re (2003), 268 N.B.R.(2d) 201; 704 A.P.R. 201; 2003 CarwellNB 553 (T.D.), refd to. [para. 14].

Saunders v. Vautier (1841), Cr. & Ph. 240, refd to. [para. 16].

Breau v. Central Trust Co. - see Boudreau Estate, Re.

Boudreau Estate, Re (1964), 47 D.L.R.(2d) 584; 1964 CarswellNB 6 (T.D.), refd to. [para. 17].

Townshend Will, Re (1941), 16 M.P.R. 69, refd to. [para. 18].

Flynn Estate v. Flynn (1989), 101 N.B.R.(2d) 330; 254 A.P.R. 330; 1989 CarswellNB 149 (T.D.), refd to. [para. 18].

Hamilton Estate, Re (1989), 99 N.B.R.(2d) 261; 250 A.P.R. 261 (T.D.), refd to. [para. 18].

Browne v. Moody, [1936] 2 All E.R. 1695 (P.C.), refd to. [para. 19].

Fischel v. Budovitch Estate (1990), 108 N.B.R.(2d) 187; 269 A.P.R. 187; 1990 CarswellNB 246 (T.D.), refd to. [para. 20].

Lawson Estate, Re (1981), 33 N.B.R.(2d) 462; 80 A.P.R. 462; 1981 CarswellNB 422 (T.D.), refd to. [para. 22].

Counsel:

G. Patrick Gorman, Q.C., for the applicant;

Richard F. McPhee, for the respondent, Michael Day.

This application was heard on April 27, 2006, before Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment orally on October 25, 2006.