Recently in Easingwood v. CRockroft, 2013 BCCA 182, the honourable Madam Justice Saunders of the British Columbia Court of Appeal considered the legalities arising when an attorney under a power of attorney creates an alter ego trust on behalf of a principal.
For a better understanding of alter ego trusts, please click here.
The case involves a widow whose late husband executed an enduring power of attorney naming his children as his attorneys. His children, acting as his attorneys and despite knowing of a will executed by their father, removed all of the husband’s assets into an alter ego trust. Further, the children did not notify either the late husband, during his lifetime, or the widow of the existence of the alter ego trust.
The terms of the alter ego trust set up by the children, in the words of the trial judge, reflected perfectly the terms of the [will] (at paragraph 40 of Easingwood v. Cockroft, 2011 BCSC 1154).
In her reasons, Madam Justice Saunders considered two general questions:
- Can an attorney under a power of attorney make an inter vivos trust on behalf of the principal or transfer to such trust assets held by the principal?; and
- Is an alter ego trust testamentary in nature?.
In determining whether an attorney may make an inter vivos trust on behalf of the principal, Madam Justice Saunders considered the Power of Attorney Act, as it was in force at the time of the original judgment in August 2011. As a general rule, it was held that provided the trust is otherwise valid, where attorneys are operating under a general power of attorney it depends on the plain reading of the specific power of attorney. It was held that “[i]n general terms, unless there is an external impediment to the creation of the trust, it [is] within the attorneys’ power to create an inter vivos trust because it [is] within [the principal]’s power to do so” (at paragraph 37).
It is notable that in September, 2011, the Power of Attorney Act was amended, and particularly Parts 2 and 3 of that Act, which now govern enduring powers of attorney, were not considered in Madam Justice Saunders’ decision.
Madam Justice Saunders went on to determine whether an inter vivos alter ego trust is testamentary in nature. At paragraph 49, she states the current state of the law in relation to a principal’s capacity to delegate the power to make testamentary dispositions to an attorney:
“It is clear, I consider, that an attorney may not make a testamentary disposition. As expressed in the authorities just cited, amongst other problems encountered, doing so runs afoul of the Wills Act, RSBC 1996 c.489. [Bank of Nova Scotia Trust Company v.] Lawson [,2005 CanLII 46390 (ON SC)] fairly explains this rule as safeguarding the true wishes of the testator as to dispositions after death.”
The question to be asked is whether the disposition is one that is dependent on death for its vigour and effect. At paragraph 52, Madam Justice Saunders, in limiting the decision in Lawson to the application of the Ontario statute, finds that:
“[t]he trust was fully established by the trust documents, and was not dependent upon [the late husband’s] death for its efficacy. The three certainties were met, and the trust, by its terms, was irrevocable. In my view, this brings the inter vivos trust fully within the description of ‘immediately effective’, and therefore it is not testamentary.”
Madam Justice Saunders, for the court, then goes on to say that an inter vivos trust may still be challenged (para.54). She states one example of such a challenge is on the basis that the attorney breached its fiduciary duty in that they failed to conform to the intentions of the principal. For example, such a challenge may be available where the trust has the effect of:
- adding beneficiaries not named in a will;
- avoiding a gift established by a will; and
- disposing of assets where the principal has chosen not to make a will.
Going on to determine the facts of this case, Madam Justice Saunders notes that the terms of the trust reflect the terms of the late husband’s will, and that the late husband’s children had acted in conformity with the late husband’s intentions. Therefore on these facts, the children did not breach the fiduciary duty they owed to their father. In the end it was found that there was no basis on which to interfere with the conclusion of the trial judge and the appeal was dismissed.
Note: The widow has an outstanding claim against the estate under the Wills Variation Act of which Madam Justice Saunders does not make any mention other than to note that the trust is valid and there is no basis to set aside the transfers to the trust as a fraudulent conveyance.
For questions about your liability in relation to an alter ego trust or a power of attorney, please contact us.