Trusts – The Certainty of Intention

In order to create a valid trust the  “three certainties” must be present- the certainty of the intention to  impose enforceable trust obligations on the trustee, the certainty of the subject matter to be included in the trust and the certainty of objects, a clearly… Read more

Qualified Disability Trusts in B.C.

QUALIFIED DISABILITY TRUST IN BC Reprinted with the kind permission of the following presenters who are experts in Disability law. PRESENTED BY: KEN M. KRAMER, Q.C., PRINCIPAL & SENIOR ASSOCIATE COUNSEL KMK LAW CORPORATION & HALLDOR K. BJARNASON, BARRISTER & SOLICITOR ACCESS LAW GROUP TRENDS… Read more

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.   The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the… Read more

The Various Types of Trusts

Warde v Slater 2017 BCSC 274 contains a discussion about the various types of trusts in deciding who owned the beneficial interest in the shares of a family business. The decision quotes extensively from Waters on Trusts In Canada.   It is helpful to refer… Read more

Discretionary Trusts

A (S) v Metro Vancouver Housing Corp. 2017 BCCA 2 was a case involving how much information was required to be provided by the recipient of discretionary trusts in order to qualify for subsidized housing. The case included an excellent discussion of what a discretionary… Read more

Tracing Converted Assets

  Converted assets can be traced and reclaimed under certain circumstances if they can be identified. For example a bank account of cash can be converted into a stock portfolio which in turn is used to buy a house that is subsequently sold and put… Read more

Breach of Trust

A breach of trust occurs when the trustee’s duty to act precisely within the terms of his obligations is not fulfilled.  If he fails in this, it is of no significance that he or she had no intention of departing from his duty. Trustees have been… Read more

Separation Agreement and Constructive Trust

In Schiller-Arsenauult v Proudman 2015 BCSC 1924 , the deceased after her divorce overlooked changing her designated beneficiary of her insurance policy from her ex husband to her sister, who was also the residual beneficiary of her will. The Court found that the ex husband in… Read more

Disabled Persons Allowable Assets Increased

The British Columbia government announced that the amount of assets that disabled persons may own, without disqualifying him or herself to monthly state assistance payments, including medical, from $5000-$100,000 per individual, or $200,000 for a disabled couple. One of the various drafting errors that I… Read more

Fiduciary Cannot Avoid Liability By Delegating

The Sas Law Society reasons for judgment re unprofessional solicitor conduct, repeated a basic rule of trusts-( 2015 LSBC 19, April 20,2015  at paragraph 220)- a trustee cannot avoid liability by using the defence of having delegated core authority  to an employee. The exception would only be… Read more

The Usual Rules For Costs In Trusts

The Usual  Rules For Costs In Trusts In matters of trust administration, the “usual rule” is for the court to award special costs to all parties, payable out of the estate or trust: Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.), at paras. 5-6, Miles v…. Read more

What Is a Trust Protector

Trust Protector   A trust protector is a person appointed under the trust instrument to direct, guide or even restrain the trustees in relation to their administration of the trust. The idea behind the protector is to have somebody who can watch over the trustees… Read more

Trust Cannot Be Amended Unless Expressly Allowed

  POWER TO AMEND a TRUST Is Limited the Legal Ability to do so only when it is expressly allowed for in the trust deed.   The creation of a trust is fundamentally a conveyance of property. This conveyance cannot be altered or amended unless… Read more

Trusts Are Not Legal Entities Entities

Bronson v Hewitt 2013 BCCA 367 at para. 70 states that a trust is not a legal entity but instead is a “relationship”.   The fact that a trust is not a separate legal entity like a corporation , affects its legal analysis. Treatment of… Read more

“Sham” Trusts

Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore. The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. ,… Read more