Variation of Trust – Procedure

October 14, 2008 Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , , 0 Comments

I hope everyone had a nice Thanksgiving weekend.

In a recent blog of mine (“To vary a Trust or not to vary a Trust: Does a Statute have the Answer?”), I touched upon the Variation of Trusts Act (R.S.O. 1990, c. V.1) as the authority to vary a trust.In today’s blog and several more this week, I will comment on the procedure and documents typically involved with a variation of trust.

Having decided that a variation is necessary, the trust document should be carefully reviewed to ensure that all terms of the trust are properly understood, and to identify all of the persons having an interest or potential interest (actual and potential beneficiaries) in the trust, to consider those that need to sign the proposed arrangement (which sets out the variation proposed), to consider who will require representation before the Court and those that will be affected by the variation.

The procedure for such a variation consists of the preparation of and signature of a Deed of Arrangement (or agreement setting out the variation that the Court is requested to approve), and an Application to the Ontario Superior Court of Justice (to be heard before a single Judge) seeking a Judgment approving the Deed of Arrangement on behalf of the minor, unborn, unascertained, incapable or contingent beneficiary.

The Application materials, in turn, consist of a Notice of Application and affidavit material supporting the variation. A factum will also be required unless leave is sought further to Rule 38.09(4) of the Rules of Civil Procedure dispensing with the necessity of the factum. A draft Judgment should also be submitted when the materials are served and filed.

A Consent to the Application signed by all of the capacitated beneficiaries is best included as part of the Application material.   A letter/document from the Children’s Lawyer/Public Guardian and Trustee indicating their position (ie. that they do not object on behalf of their respective interest) is also typically a part of the Application materials, unless the Children’s Lawyer/Public Guardian and Trustee are attending in Court at the Application before the Judge.

In tomorrow’s blog, I will take a look at the appointment of the litigation guardian for the minor, unborn, unascertained or incapable beneficiary of the trust for the purposes of a variation of trust.

Thanks for reading. Craig

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