Estate Planning

Variation of Trust - The Application

By Hull & Hull LLP

Today’s blog is the last in my series this week on the variation of a trust under the Variation of Trusts Act and touches upon the Application material to be brought in respect of the variation.

The Application seeking approval of the variation is usually brought by one or more of the capacitated beneficiaries. The respondents are typically all of the beneficiaries who are not named as the applicant(s) and the trustee (unless the trustee is the, or one of the, Applicant(s)). As a trustee is to act impartially toward the beneficiaries, it may not be appropriate for the trustee to bring the Application depending on the circumstances.
 

The Notice of Application sets out the relief being sought including (the following is not meant to be exhaustive): (i) any representation order required; (ii) Judgment approving the Deed of Arrangement on behalf of the respective interest;(iii) Orders for any ancillary relief that may be necessary; and (iv) costs.

The grounds being relied upon for the relief being sought are also included as are the materials being relied on. 

The supporting affidavit typically includes the relevant facts and verifies the recitals in the Deed of Arrangement. Any pertinent document such as the trust document, the listing of the trust property, and documents from another proceeding from which the variation arose, can, as necessary, be made exhibits to the affidavit.

The draft Judgment typically refers to all of the materials filed with the Court and includes, as necessary, provisions that, among other things, address the appointment of the litigation guardian, the approval of the Deed of Arrangement of behalf of incapacitated beneficiary, any ancillary relief and costs. 

Have a nice weekend. Craig
 

Full post as published by Toronto Estate Law Blog on October 17, 2008 (boomark / email).