Westminster and Sullivan v. Royal Trust Co., (1972) 7 N.S.R.(2d) 664 (TD)

• Judge: Gillis, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 30, 1972
• Jurisdiction: Nova Scotia
• Citations: (1972), 7 N.S.R.(2d) 664 (TD)

Westminster v. Royal Trust (1972), 7 N.S.R.(2d) 664 (TD)

MLB headnote and full text

Westminster and Sullivan v. The Royal Trust Company

Indexed As: Westminster and Sullivan v. Royal Trust Co.

Nova Scotia Supreme Court

Trial Division

Gillis, J.

December 11, 1972.

Summary:

This case arose out of an application for the variation of the terms of a trust pursuant to s. 1 of the Variation of Trusts Act. A settlor had established an inter vivos trust, the terms of which were as follows: (1) the female plaintiff was given a life estate with respect to the income from the capital fund of the trust; (2) on the death of the female plaintiff, the capital fund of the trust was to vest absolutely in her children, if any; (3) if the female plaintiff died childless, the capital fund of the trust was to vest absolutely in the male plaintiff or, if he predeceased the female plaintiff, in his children, if any. At the time of the application, the female plaintiff was a 57 year old childless widow. The 60 year old male plaintiff was childless and married to a 55 year old woman. The plaintiffs proposed to have the capital fund of the trust turned over to them. In return, the plaintiffs proposed to issue to the defendant trustee issue risk insurance equal to the amount of the capital fund of the trust plus 10 per cent, in the event that children were born to either of them.

The Nova Scotia Supreme Court, Trial Division, stated that, in order for him to approve an application under s. 1 of the Act, the proposal must be beneficial to the potential beneficiaries under the trust. The trial court held that the plaintiffs' proposal was beneficial to any potential beneficiaries under the trust. The trial court allowed the application.

Trusts - Topic 8060

Administration of trusts - Intervention by court variation of trusts legislation - Variation of Trusts Act, R.S.N.S. 1967, c. 323 - Whether arrangement beneficial to potential beneficiaries - The plaintiffs applied for the variation of the terms of a trust under the trust the female plaintiff had a life estate in the income from the capital fund of the trust - The trust provided that if she died childless the capital fund was to vest absolutely in the male plaintiff or, if he predeceased the female plaintiff, in his children - The female plaintiff was a 57 year old childless widow - The male plaintiff was 60 years old, childless, and married to a 55 year old woman - The plaintiffs proposed to have the capital fund of the trust turned over to them - In return, the plaintiffs proposed to issue to the defendant trustee issue risk insurance equal to the amount of the capital fund of the trust plus 10 per cent - The Nova Scotia Supreme Court, Trial Division, stated that such an arrangement must be beneficial to all potential beneficiaries (unborn children) under the trust - The Trial Division granted the application.

Words and Phrases

Benefit - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "benefit" in s. 2 of the Variation of Trusts Act, R.S.N.S. 1967, c. 323 - See paragraphs 6 to 8.

Cases Noticed:

Re Estate of William P. Spencer (1970), 1 N.S.R.(2d) 282, folld. [para. 8].

Re Zekelman (1971), 19 D.L.R.(3d) 652 (Ont. H.C.), folld. [para. 8].

Re Remnant's Settlement Trusts, [1970] 2 All E.R. 554, folld. [paras. 8 & 9].

Re Druce's Settlement Trusts, [1962] 1 All E.R. 563, folld. [para. 12].

Statutes Noticed:

Variation of Trusts Act, R.S.N.S. 1967, c. 323, sect. 1, sect. 2 [para. 6].

Counsel:

Donald McInnes, Q.C., and G.T.H. Cooper, for the plaintiffs;

A.R. Moreira, Q.C,, for the defendant.

This case was heard on October 10 and November 30, 1972. Judgment was delivered on December 11, 1972.