Drescher v. Drescher Estate

Drescher v. Drescher Estate

The court exercised its discretion under the Variation of Trusts Act to approve the negotiated settlement on behalf of the incapacitated beneficiary because the arrangement provides a tangible benefit to the plaintiff (a guaranteed $3,000 monthly income for life), resolves ongoing TFMA litigation, reduces delay and...

Source-derived case information.

Citation
2007 NSSC 352
Parties
Plaintiff: Gisela Drescher; Defendant Executor: Herb Shannon; Defendant Executor: John Hencher; Interested Party: Gay Drescher; Interested Party: Alzheimer Society of Nova Scotia
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
21 November 2007
Procedural Posture
Trust Variation / Estate Litigation (application Under Variation of Trusts Act and Saunders V. Vautier) / Application for Court Approval (oral Decision)
Outcome
Application granted.
Legal Topics
Variation of Trusts, Saunders V. Vautier Rule, Enduring/continuing Power of Attorney, Court Approval of Settlements for Incapacitated Beneficiaries, Testator's Family Maintenance Act Claim
Source Language
english
Trusts Estates Capacity Law Power of Attorney Civil Procedure Family Maintenance Variation of Trusts Saunders V. Vautier Rule +3 more

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Parties

Gisela Drescher

Plaintiff

Herb Shannon

Defendant Executor

John Hencher

Defendant Executor

Gay Drescher

Interested Party

Alzheimer Society of Nova Scotia

Interested Party

Procedural Posture

Trust Variation / Estate Litigation (application Under Variation of Trusts Act and Saunders V. Vautier) / Application for Court Approval (oral Decision)

Legal Issues

  1. 1 Whether an attorney under a continuing power of attorney can consent on behalf of an incompetent beneficiary to vary or terminate a trust under the rule in Saunders v. Vautier
  2. 2 Whether the court should approve a proposed variation/settlement on behalf of an incapacitated beneficiary under the Variation of Trusts Act
  3. 3 Whether the proposed arrangement is for the benefit of the incapacitated beneficiary and otherwise fit for court approval

Ratio Decidendi

The court exercised its discretion under the Variation of Trusts Act to approve the negotiated settlement on behalf of the incapacitated beneficiary because the arrangement provides a tangible benefit to the plaintiff (a guaranteed $3,000 monthly income for life), resolves ongoing TFMA litigation, reduces delay and costs, and is overall fit for approval despite departing from the testator's original intention; therefore the court ordered implementation of the agreement forthwith.

Court Disposition

Application granted.

Orders

  • Court approves the proposed agreement under the Variation of Trusts Act and orders its implementation forthwith