Some argue that not all people requiring fiduciary services can afford or qualify for those services from trust companies, and so other corporations should be permitted to provide fiduciary services. The Commission finds that current legislation ensures that the fullest protection comes from trust companies and that there is no need to allow other corporate fiduciaries to provide these services.
At present, only trust companies are permitted to act as corporate trustees, executors, and administrators in Canada. However, trust companies have increasingly become multi-purpose financial institutions. The trust and fiduciary part of their business has diminished in importance. At the same time, because of our aging population, more people require assistance to manage the wealth they have accumulated over a lifetime, and may require a variety of fiduciary services. In other jurisdictions, including the United States, Britain, and other Commonwealth countries, trust and fiduciary services are more widely available, and more varied in content. This consultation paper examines the law governing corporate trustees and fiduciaries in Saskatchewan, and asks whether the monopoly on trustee services currently possessed by trust companies is still necessary. This project is part of the Commission’s focus on legal issues affecting the elderly.
This report, issued in December, 2002, completes the Commission’s project on the law of trusts. It is the product of an extensive research program that included circulation of consultation papers on aspects of the law of trusts for comment from the bar and public. The report recommends adoption of a modernized Trustees Act reflecting the contemporary needs of settlors,
The Dependants’ Relief Act should be reformed to limit liability of estates to provide for handicapped adult children. It should be permissible to use funds for purposes other than day-to-day maintenance without jeopardizing eligibility for social assistance. The changes proposed would not impose any new or additional burdens on taxpayers.
The Saskatchewan Trustee Act limits the investment options of trustees to a list of approved investments. This fails to promote balanced portfolios, and has motivated drafters of trusts to avoid statutory oversight entirely. The Commission favours a broadened British approach that encourages balanced investments and requires trustees to obtain adequate advice before investing.
Saunders v. Vautier established the rule that beneficiaries of a trust can call upon the trustee to terminate the trust and distribute the trust property as they direct. The Commission’s recommendation is to abolish this rule in Saskatchewan by amending The Variation of Trusts Act. The Commission believes that modification of a trust should occur only with court approval under the Act.
The complexity of the law of perpetuities and accumulations can lead to unexpected and undesirable results. Social concerns originally justifying the rules no longer obtain. The Commission thus concludes that the rule against perpetuities and accumulations ought to be abolished