In Re Rispin. Canada Trust Co. v. Davis

In Re Rispin. Canada Trust Co. v. Davis

Where a will vests a pure discretion in an executor to pay or withhold interest and principal to a named beneficiary, and the executor withholds payment and the beneficiary dies leaving undisposed funds, those undisposed funds constitute an intestacy and pass to the testator's next of kin as at the testator's death.

Citation
(1912) 46 SCR 649
Parties
Appellant (executor of Son): Canada Trust Co.; Respondent (next of Kin Claimant): Davis; Intervener (official Guardian): Official Guardian
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 June 1912
Procedural Posture
Appeal to Supreme Court of Canada / On Appeal From the Court of Appeal for Ontario; Judgment Delivered by Supreme Court
Outcome
Appeal dismissed
Legal Topics
Discretionary Executor Powers, Intestacy, Distribution of Undisposed Trust Funds, Executor's Duties
Source Language
English
Estates Wills Trusts Succession Discretionary Executor Powers Intestacy Distribution of Undisposed Trust Funds Executor's Duties

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Parties

Canada Trust Co.

Appellant (executor of Son)

Davis

Respondent (next of Kin Claimant)

Official Guardian

Intervener (official Guardian)

Procedural Posture

Appeal to Supreme Court of Canada / On Appeal From the Court of Appeal for Ontario; Judgment Delivered by Supreme Court

Legal Issues

  1. 1 Whether funds remaining in an executor's discretionary trust on death of the beneficiary pass to the beneficiary's heirs or to the testator's next of kin
  2. 2 Whether the executor's failure to dispose of the funds created an intestacy of that fund

Ratio Decidendi

Where a will vests a pure discretion in an executor to pay or withhold interest and principal to a named beneficiary, and the executor withholds payment and the beneficiary dies leaving undisposed funds, those undisposed funds constitute an intestacy and pass to the testator's next of kin as at the testator's death.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Judgment of the Court of Appeal for Ontario affirmed