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TABLE OF CONTENTS
Preface:
The dreaded Trust Law Chamber, where many a poor law student or lawyer has been lost or become insane. This is the worst of the worst of the bastions and relics of English law still existing. A mish-mash of statute law and ancient case law, trust owes its origin to, gasp, equity! So some knowledge of equity is required. We have tried to simplify the law of trusts in Canada throughout these pages.
Sadly, though, there is no reason for trust law to be as complex as it is now. Equity should have been give a Christian burial decades ago and replaced by codification.
"Equity is a roguish thing. For law, we have a measure; know what to trust to. Equity is according to conscience of him that is Chancellor, and as that is larger or narrower, so is Equity." H. W. Challis, A Song of the Uses.
Trust law in Canada should not only be codified but also uniform throughout the land.
Codified because the law is now far from the reach or comprehension of the common man; mastered only by expert legal counsel. And yet, trust law provides such wonderful tools for safely leaving property to next-of-kin or charitable purposes.
Uniform because there is no valid reason why the law of trusts must be so different from one province to another.
But codified or uniform it ain't.
So we've called this part of duhaime.org the "Chamber" to reflect the esoteric and restricted-access nature of the subject matter.
There's more.
In the practice of law, trusts are closely associated with taxation legislation. Taxation legislation is the reigning champion when it comes to technical complexities. Taxation law is beyond the scope of these articles and so little mention is made of it. However, in the practice of trust law, taxation issues impact on virtually every piece of advice a trust lawyer gives a client such as the choice of beneficiary, of trustee (family or professional), how much discretion to give the trustee, whether to run or fight, etc.
Finally, some Canadian trust law professors insist on sustaining, within the auditoriums of Canadian law schools, unnecessary legal distinctions in this area of the law; distinctions that Canadian Courts reject every chance they get. So in some areas, the text books say one thing and the Courts say another.
Disclaimer: So perhaps in these pages more so than elsewhere on the duhaime.org site, it is important to realize that the material is not legal advice. It is general legal information only and as with all law, subject to change without notice by either a sudden legal decision by the courts or government legislative or regulatory change.
Individual provinces may have trust legislation that differs from the rules summarized herein. It is not possible to warrant the day-by-day accuracy of this information on this or other Trust Law Chamber pages. On matters of trust law, Canadian citizens really have no choice but to consult a lawyer not only because the topic is complex but also because the implications of poor decisions are usually substantial. Of course, reading these pages will give the citizen a good basic understanding of trust law so as to provide some balance between the client of legal services and the lawyer.
Well, that's the extent of our editorial!
We've been asked to provide a plain-language series of articles on the law of trusts in Canada. But before we set ourselves to the task, we offer section 38 of the British Columbia Trustee Act as a token of trust law in Canada today (and a candidate for the Guiness Book of World Records as the longest run-on sentence). If anyone figures out what it means or, "as the case may be", is still awake by the final word, please e-mail us with the explanation!
"38. Where a trustee or assignee acting under the trusts of a deed or assignment for the benefit of creditors generally, or a particular class or classes of creditors when the creditors are not designated by name in it, or an executor or administrator, has given, by publishing once in the Gazette and twice each week for 2 consecutive weeks or once a week for 4 consecutive weeks in a newspaper published or circulating in the county in which the debtor or the person deceased resides or resided, a notice to creditors and others to send in to the trustee, assignee, executor or administrator their claims against the person for the benefit of the creditors of whom the deed or assignment is made, or the estate of the testator or intestate (as the case may be), the trustee, assignee, executor or administrator is, at the expiration of the time named in those notices for sending in the claims, which time shall not be less than 21 days after the date of the last publication, at liberty to distribute the proceeds of the trust estate, or the assets of the testator or intestate (as the case may be), or any part of them, among the parties entitled to them, having regard to the claims of which the trustee, assignee, executor or administrator then has notice, and shall not be liable for the proceeds of the trust estate or assets (as the case may be), or any part of them, so distributed to a person of whose claim the trustee, assignee, executor or administrator has not notice at the time of the distribution of them, or a part of them (as the case may be); but this Act shall not prejudice the right of a creditor or claimant to follow the proceeds of the trust estate or assets (as the case may be), or any part of them, into the hands of the persons who may have received them."
Nous vous aviserons que ce texte ne s'applique pas au territoire québecois quoique la reforme du Code Civil en 1994 a fait en sorte que le fiducie en droit civil s'apparente de plus en plus au regime "trust" du droit commun. The summary in this Trust Law Chamber does not apply to Quebec, which has it's own regime under the title of "Fiduciary" in the Civil Code of Quebec although the 1994 reform of the Civil Code has brought the Quebec system much closer to English trust law. In addition, common law provinces have "trustee acts" and other legislation which alters the principles of equity or the common law as generalized in these pages. Readers attempting to resolve an actual trust law situation should consult with legal professionals. References in parentheses are to applicable case law.
Lloyd Duhaime, article published 1996-2008.