In the Matter of the Elizabeth and Horst Henning Trust

In the Matter of the Elizabeth and Horst Henning Trust

The trustee, Heidi Rosemary Howarth, is authorized by the Trust Deed to execute the proposed Indemnity Agreement (All Liabilities) in favour of Coastal Community Credit Union because the trust vests the settlor's interests in the trustee and expressly authorizes the trustee to deal with trust assets as if she were...

Source-derived case information.

Citation
2006 BCSC 1287
Parties
Settlor / Applicant: Elizabeth Henning; Trustee / Applicant: Heidi Rosemary Howarth; Lender / Respondent: Coastal Community Credit Union; Corporation / Interested Party: 3H Hotels Inc.; Trust / Subject Matter: The Elizabeth and Horst Henning Trust
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
22 August 2006
Procedural Posture
Application for Declaration of Trustee Powers Under Trust Deed / Hearing on Application for Declaration (reasons for Judgment)
Outcome
Declaration granted in part and refused in part
Legal Topics
Alter Ego Trust, Trustee Powers and Discretions, Indemnity Agreements, Authority to Execute Security Documents, Investment and Borrowing Powers
Source Language
english
Trusts Property Law Banking and Finance Tax (income Tax Act) Alter Ego Trust Trustee Powers and Discretions Indemnity Agreements Authority to Execute Security Documents +1 more

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Parties

Elizabeth Henning

Settlor / Applicant

Heidi Rosemary Howarth

Trustee / Applicant

Coastal Community Credit Union

Lender / Respondent

3H Hotels Inc.

Corporation / Interested Party

The Elizabeth and Horst Henning Trust

Trust / Subject Matter

Procedural Posture

Application for Declaration of Trustee Powers Under Trust Deed / Hearing on Application for Declaration (reasons for Judgment)

Legal Issues

  1. 1 Whether the trustee is authorized by the Trust Deed to grant an indemnity in favour of Coastal Community Credit Union
  2. 2 Whether the trustee may execute the proposed Indemnity Agreement (All Liabilities) on behalf of the Trust
  3. 3 Whether the trustee is authorized to execute security documents or sign on behalf of 3H Hotels Inc.

Ratio Decidendi

The trustee, Heidi Rosemary Howarth, is authorized by the Trust Deed to execute the proposed Indemnity Agreement (All Liabilities) in favour of Coastal Community Credit Union because the trust vests the settlor's interests in the trustee and expressly authorizes the trustee to deal with trust assets as if she were the beneficial owner; however the court declined to authorize the trustee to execute security documents or to sign on behalf of 3H Hotels Inc. because authority to sign for the corporation is a separate matter not determined by the Trust Deed.

Court Disposition

Declaration granted in part and refused in part

Orders

  • Declaration that Heidi Rosemary Howarth, as Trustee of the Elizabeth and Horst Henning Trust, is authorized to execute the proposed Indemnity Agreement (All Liabilities) in favour of Coastal Community Credit Union with respect to the credit facilities contemplated by the Credit Facilities Letter Agreement dated June...
  • Refusal to declare that the Trustee is authorized to execute security documents or to sign on behalf of 3H Hotels Inc.; that issue is distinct from the trustee's power under the Trust Deed and was not adjudicated in favor of the applicants.