Killam v. Killam

Killam v. Killam

Clause 12 does not create a legal trust; the phrase 'It is my desire, however, I do not direct' is precatory and negates mandatory intention, 'shall' is properly read as directory/future in context, and the added phrase 'as long as said funds are available' is inconsistent with an express trust and would be redundant if a trust were intended; surrounding circumstances support a moral rather than legal obligation.

Citation
2017 BCSC 175
Parties
Petitioner: Humphrey Hubbard Killam; Respondent: Eugene Humphrey Killam
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 February 2017
Procedural Posture
Will Interpretation / Declaration Regarding Estate / Judgment on Petition (reasons for Judgment)
Outcome
Petition dismissed; Clause does not create a trust for the Petitioner
Legal Topics
Creation of Trusts, Precatory Language, Construction of Wills, Trustee De Son Tort, Armchair Vs Four Corners Approach, Laches
Source Language
English
Wills and Estates Trust Law Civil Procedure Creation of Trusts Precatory Language Construction of Wills Trustee De Son Tort Armchair Vs Four Corners Approach +1 more

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Parties

Humphrey Hubbard Killam

Petitioner

Eugene Humphrey Killam

Respondent

Procedural Posture

Will Interpretation / Declaration Regarding Estate / Judgment on Petition (reasons for Judgment)

Legal Issues

  1. 1 Whether Article 8, Clause 12 of the Will creates a trust for the benefit of the Petitioner
  2. 2 Whether the respondent is a trustee de son tort with respect to funds received
  3. 3 Whether surrounding circumstances justify reading a trust into precatory language

Ratio Decidendi

Clause 12 does not create a legal trust; the phrase 'It is my desire, however, I do not direct' is precatory and negates mandatory intention, 'shall' is properly read as directory/future in context, and the added phrase 'as long as said funds are available' is inconsistent with an express trust and would be redundant if a trust were intended; surrounding circumstances support a moral rather than legal obligation.

Court Disposition

Petition dismissed; Clause does not create a trust for the Petitioner

Orders

  • Declaration that Article 8, Clause 12 of the Will does not create a trust for the benefit of Humphrey Hubbard Killam
  • Directions for written submissions on costs to be exchanged and filed by agreement but no later than 30 days from date of reasons