Luck of the Irish?

August 22, 2007 Hull & Hull LLP Archived BLOG POSTS - Hull on Estates Tags: , , 0 Comments

Every so often, a case comes before the Court which seems to clearly captivate the presiding judge, has historical resonance, and just makes for interesting reading.  Re Connolly Estate (2007) 31 E.T.R. (3d) 81, a decision of the Prince Edward Island Trial Division, is such a case.  Here, Justice D.H. Jenkins considered the interpretation of the Will of the late Owen Connolly who died on December 27, 1877 (yes, you read that correctly).  At issue were the terms of a Trust created by the last of four Codicils to the deceased’s Last Will.  The Trust was created "for the purpose of educating…poor children resident in Prince Edward Island who are members of the Roman Catholic Church and who are Irish or the sons of Irish fathers." (The Court pointed out that the Trust was created prior to the coming into force of human rights legislation in P.E.I. which, it implies, may otherwise have had an impact on the terms of the Trust).  In each successive year, the Trustees would create as many bursaries as the income generated by the capital of the trust would allow, such that the Trust was now paying out approximately 120 bursaries of $500 each. The Trustees sought the assistance of the Court having regard to the fact that "a blending of bloodlines has occurred, so that Prince Edward Island society has become somewhat a melting pot."  In interpreting the terms of the Trust, the Court applied the usual rules of interpretation including consideration of the surrounding circumstances of the deceased.  Evidence in this regard consisted of a short biography of the deceased published shortly after his death and an article published in the Charlottetown newspaper reporting on his death (he was clearly a prominent figure at the time).  As such, the decision reads like a history lesson of the emigration of Irish to "the colonies." The Court concluded that the Trustees were appropriately exercising their discretion by paying out bursaries to a beneficiary or a beneficiary’s father who had " a significant component (50%+) of Irish ancestry."  Because such a class of children continued to exist in Prince Edward Island (albeit "melting away"), there was no risk of the gift failing.  The Court therefore had no need to invoke the cy pres doctrine to preserve the general charitable intent of the testator.  Yet another example of the unique nature of estates and trusts law!

Until tomorrow,

David

     

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