A trust as an alternative to a will?
University of British Columbia
Master of Laws - LLM
The purpose of this thesis is to study the feasibility of using a trust as an alternative to the will in the jurisdiction of British Columbia. The genesis of the study lies in the liberal interpretation and application of the Wills Variation Act by the courts in this province. Assuming that the free alienation of property upon death is a sound principle, it is incumbent upon the legal community to find methods of avoiding the interference of the judiciary in testamentary matters. To properly assess the trust as an alternative to the will, a brief overview of both is provided. The historical context of the trust is examined, followed by a review of its use in the United States as a wills substitute. The particular trust popular in the United States is one containing a power to revoke by the settlor, a life interest with power to encroach upon capital in favor of the settlor, and powers of modification and control retained by the settlor. It is hereinafter referred to as the revocable trust. Whether the revocable trust would be acceptable to the commonlaw of British Columbia is examined, and the conclusion reached is that there is nothing in theory to prevent its use as an alternative to the will. However, careful drafting must be used at all times to prevent attacks upon the validity of the trust itself. Certain practical considerations in using the revocable trust as an alternative to the will are reviewed, including income tax laws, provincial tax laws, and possible claims by beneficiaries. The more philosophical issue of whether the use of a trust should be permitted to avoid claims by surviving spouses and children is also examined. Conflicting doctrines in the United States are reviewed in light of existing caselaw in British Columbia. The tentative conclusion is that our own courts will permit a settlor to avoid succession claims by employing the trust. Again, however, careful drafting is crucial, and the facts in each case must be reviewed. The study establishes that the revocable trust can be used as an alternative to the will in British Columbia. The popularity of such use may, however, be limited by Canada's income tax laws as well as provincial tax laws. The resistance of the legal community to new ideas may also reduce the possible use of the revocable trust as an alternative to the will.
Trusts and trustees -- British Columbia
Law, Peter A. Allard School of