McGavin (Estate), 2011 ABQB 591

Court of Queen ’ s Bench of Alberta Citation: McGavin (Estate), 2011 ABQB 591 Date: 20110928 Docket: ES03 133063 Registry: Edmonton Court File Number ES03 133063 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name John Douglas McGavin Applicant Concentra Trust _______________________________________________________ Supplemental Reasons for Judgment of the Honourable Mr. Justice R.A.

Graesser _______________________________________________________ Introduction [ 1 ] In McGavin (Estate), 2011 ABQB 278 , I concluded that the Edmonton Community Foundation was not exempt from filing NC 6.1 forms with respect to trusts imposed on it by the Will of a testator. [ 2 ] Having received submissions from the Edmonton Community Foundation with respect to The Edmonton Community Foundation Act , I also held that it was not appropriate to require the Foundation to confirm that it would “keep the trust property separate from any other property”, because of the provisions of The Edmonton Community Foundation Act . [ 3 ] Following that decision, I received further submissions from the Edmonton Community Foundation with respect to the wording of form 6.1 as it related to bequests to the Edmonton Community Foundation.

[ 4 ] The Edmonton Community Foundation seeks a further revision to form NC 6.1 to substitute “trust” for “will” in para. 2(b). Background [ 5 ] The Edmonton Community Foundation works with donors in a number of difference circumstances.

Some donors establish a “fund” during the donor’s lifetime, generally specifying the charity or charities the donor wishes to benefit, and allowing the donor or the donors’ family to participate in funding decisions during the donor’s lifetime. [ 6 ] Unless the Will places conditions or obligations on the Edmonton Community Foundation, a bequest to the “xyz fund with the Edmonton Community Foundation” would not appear to require an NC 6.1 form.

Any obligations imposed on the Edmonton Community Foundation have already been imposed by the agreement between the donor and the Edmonton Community Foundation, and not by the Will. [ 7 ] Donations may be made unconditionally to the Edmonton Community Foundation, in which case no NC 6.1 would be required as the Edmonton Community Foundation may use those funds in accordance with its legislated mandate. [ 8 ] In the circumstances of this estate, there was no pre-existing agreement between Mr. McGavin and the Edmonton Community Foundation.

I have interpreted the Will as creating a trust, thus requiring a preparation and filing of an NC 6.1 form. [ 9 ] There are undoubtedly many different ways in which funds can be bequeathed to the Edmonton Community Foundation. It is, in my view, appropriate that the NC 6.1 form be modified to accord with the Edmonton Community Foundation’s obligations under The Edmonton Community Foundation Act , as well as their practical requirements for the administration of the Foundation’s significant assets and over 550 funds. [ 10 ] Substitution of the word “trust” for the word “will” in para. 2(

b) does not lessen the Foundation’s obligations and is consistent with its obligation to fulfill the trust obligations imposed on it by a Will, or by The Edmonton Community Foundation Act , or by the provisions of any fund documentation. [ 11 ] As I indicated to the Edmonton Community Foundation and the Estate’s lawyer, on submission of NC 6.1 wording as follows: “The Edmonton Community Foundation acknowledges that as trustee:

a) It must use the funds in the trust only in accordance with the terms of the trust;

b) It cannot borrow or take a benefit from the trust property unless the trust expressly allows it to do so;

c) It must keep adequate records of my administration of the trust property; and

d) It must invest the trust property in accordance with the provisions of The Edmonton Community Foundation Act .” Probate will be issued as requested. [ 12 ] While the Edmonton Community Foundation argues that conditional gifts are often precatory and not a charitable purpose trust, following Christian Brothers of Ireland in Canada (Re) (1998) 37 O.R. 3 (d) 367 (Ont. C.J.G.D.), 2047 O.R. 3(d) 674 (Ont. C.A.), application for leave to appeal of the Supreme Court of Canada dismissed, November 16 th , 2000, I find that the bequest made by Mr.

McGavin to the Edmonton Community Foundation creates a charitable purpose trust and is not merely a precatory gift. [ 13 ] In the case of a true precatory gift, no form NC 6.1 would appear to be required. But that is not the case here. [ 14 ] I am indebted to the submissions by Ms. Hawkesworth on behalf of the Edmonton Community Foundation and Mr. Stewart on behalf of the Estate. Dated at the City of Edmonton, Alberta this 27 th day of September, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Dustin Stewart Minsos Stewart Masson for the Personal Representative, Concentra Trust Kathy Hawkesworth for the Edmonton Community Foundation