Sunday, May 24, 2015

Fargey v. Fargey

If you want to ensure that your child or grandchild (or any other beneficiary) will not have control over an inheritance from you until he or she attains a more mature age than nineteen, the age of majority in British Columbia, then it is important that your will be drafted to avoid that beneficiary from being able to terminate the trust your create in your will for him or her. One way you may accomplish this is by providing that if the beneficiary dies before the age at which you wish to give the beneficiary control, his or her children will receive the funds held in the trust. But simply saying that a trustee will hold a beneficiary’s share until the beneficiary attains the age of say twenty-five will not do.

I have written before about the rule in Saunders v. Vautier (1841), 41 E.R. 482, allowing a beneficiary with legal capacity to terminate a trust if the beneficiary’s interest has fully vested, but the principle has been applied recently in British Columbia. The case is Fargey v. Fargey, 2015 BCSC 721.

Donald Robert Fargey in his will provided that if, as occurred, his wife and either of his two children died before him, the share of the deceased child, the trustee of his estate would hold the that share for each of that deceased child’s own children (Donald Fargey’s grandchildren) and:

invest and keep invested each such sub-share and to pay the income therefrom or so much thereof as may be necessary or advisable in my Trustee’s discretion for the grandchild’s maintenance, education or benefit during his or her minority, (any income not so paid in any year to be added to the capital of the share) and upon my grandchild attaining the age of twenty-five (25) years to distribute the capital of the sub-share to him or her.

The will did not contain a provision for anyone else if a grandchild died before the age of 25.

Donald Fargey’s son died before him, and his son had two children, Mathew Robert Fargey and Joseph Bartholomew Fargey. Mathew Fargey is an adult, but not yet 25, and Joseph Fargey is still a minor. Both grandchildren applied to court to terminate the trust, with Joseph Fargey’s mother bringing the application as his litigation guardian.

The two grandchildren relied on Saunders v. Vautier. In his reasons for judgment, Mr. Justice McEwan wrote at paragraph 7:

[7]             The authority cited by the petitioner is Saunders v. Vautier (1841), 41 E.R. 482 (Saunders). It was considered in British Columbia in Grieg v. National Trust Co. Ltd. (1997), 47 B.C.L.R. (3d) 42 (B.C.S.C.), where Grist J. observed:
4  Donovan Waters in The Law of Trusts In Canada, 2d Ed. (Toronto: Carswell, 1984) at 962-963, comments on the rule in Saunders v. Vautier (1841), 41 E.R. 482,

If there is only one beneficiary, or if there are several (whether entitled concurrently or successively), and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them without reference to the wishes of the settlor or the trustees. (Approved in Re Johnston (1964), 48 D.L.R. (2d) 573 (B.C.S.C.) per Nemetz, J., as he then was).

In finding that Mathew Fargey was entitled to his share outright, Mr. Justice McEwan distinguished a Manitoba Court of Appeal case Fast v. Van Vliet, 49, D.L.R. (2d) 616, in which the court refused an order collapsing the trust where the will provided that a share of the will-maker’s estate would be divided between two named beneficiaries “upon their attaining the age of twenty-five years.” The majority of the Manitoba Court of Appeal held that the interest of each of the beneficiaries had not fully vested, but was contingent on each attaining the age of 25, which is when the division occurs.

In contrast, in Fargey, the division occurred on the date of Donald Fargey, and each of the two grandchildren’s shares vested at that time. The will did not postpone the gift, but rather the enjoyment of the gift.

Mr. Justice McEwan wrote:

[12]         What is clear in that case is that the will [in Fast] provided that the estate was not to be divided into shares for the beneficiaries until they attained the age of 25 years.

[13]         In contrast the shares in Donald Fargey’s will are to be created at the time of his death and the distribution of the share is postponed to the age of 25. It appears that what was anticipated was that equal shares would be created immediately and the income administered as the differing needs of the beneficiaries dictated, until their majority. There is then a gap until each share can be distributed to each brother as each attained the age of 25. The division into shares appears to take place before, not upon the attaining of the age of 25.

Because Joseph Fargey has not attained the age of majority, his share remains held in trust for him until he turns 19. But Mr. Justice McEwan made an order under the Trust and Settlement Variation Act allowing the trustee to use capital from Joseph Fargey’s share for his benefit before he attains the age of 19. This will allow the trustee to use funds to assist with his tuition at his school, which exceeds the income from his share.

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