Trust issues: gaps, anomalies and other areas of concern with Manitoba trust law
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Date
2020
Authors
Falkingham, Steven
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Abstract
Trusts are important tools for estate and tax planning. In Canada, property and trust law are governed at the provincial level—section 92(13) of the Constitution Act of Canada provides that “[i]n each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, … Property and Civil Rights in the Province.” The aim of this thesis is to consider areas of trust law that are unique to Manitoba and highlight certain gaps and areas that may be improved through a comparative analysis.
The first issue I explore is the indefeasibility principle enshrined at section 59 of Manitoba’s Real Property Act and the co-existence of constructive and resulting trusts as set out in the recent Hyczkewycz v Hupe appellate decision. I then consider the applicability in Manitoba of another example of an equitable interest existing “off title” in Stonehouse v British Columbia (Attorney General). I also review remedies available to beneficiaries following remarks in Hyczkewycz v Hupe regarding registering caveats to give notice to third parties.
The second issue of this thesis addresses how and why amendments to section 59 of The Trustee Act in the 1980s replaced the Rule in Saunders v Vautier, and whether, nearly forty years later, there may be a better approach. The third and final issue discussed is the scope of the court’s ability to consent to a proposed variation on behalf of beneficiaries. Manitoba previously expanded the classes of beneficiaries for whom the court could consent from four to eight. I consider whether the change resolved underlying issues and whether some guidance can be taken from other jurisdictions in this regard.
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Keywords
Law, Trusts, Trust variation, Equitable Interests