1. Introduction
Royal Trust Corporation of Canada v The Welfare Institution of the Jews of Athens[1] is a very interesting recent case. Not so much for its decision, which is unexceptional, but because of all the issues it raises: conflict of laws, the validity of a power of appointment, the validity of foreign wills made in different jurisdictions, the validity of a testamentary trust in a jurisdiction that does not recognize trusts, and uncertainty about the objects of the trust and of a contingent beneficiary and of the latter’s status. We come across these kinds of issues more often now than we used to because testators move about much more and have assets in different jurisdictions. For these reasons, it is worthwhile to have a look at the case.
2. Facts
Ms Georges was born in Constantinople (later renamed Istanbul), Turkey, in 1906. She lived most of her adult life in Turkey, Greece, and Switzerland. She was a Turkish citizen when she immigrated to Canada in 1978. Ms Georges’ husband predeceased her before she immigrated to Canada, and she never remarried. Ms Georges became a Canadian citizen and held a Canadian passport. She died in Victoria BC in 1986, having made a will there in 1985 (the ‘1985 Will’).
Ms Georges was survived by her daughter, Ms Conrad, who was born in Istanbul in 1936, but later became a resident and citizen of Switzerland in the 1950s. Switzerland was her domicile of choice. Ms Conrad died in 2019. She was twice married, but both husbands predeceased her. Ms Conrad made two wills, one in 2017 in Greece (the ‘2017 Will’), and a holographic will in 2018 in Switzerland (the ‘2018 Will’). Ms Conrad died in Greece in 2019.
Ms Georges’ 1985 Will appointed two persons as executors, but one later resigned and was replaced with Royal Trust. The court granted probate to the two named executors, and they distributed the residue of Ms Georges’ estate to Ms Conrad.
Clause 4(b)(a) of the 1985 Will created a testamentary trust (the ‘Trust’). It directed the executors to set aside certain bank deposits in the Royal Bank and pay the income to Ms Conrad ‘as long as she shall live’. The Trust is now worth approximately $500,000. The Will named Ms Conrad her mother’s sole residuary beneficiary. Paragraph 4(b) of the Will also created a Power of Appointment in favour of Ms Conrad. It provided:
If my daughter shall by her Last Will and Testament appoint sum [sic] reasonable charity within the country of Greece for such funds they shall be delivered in accordance with the directions made in such Last Will and Testament of my said daughter.
But paragraph 4(b)(b) went on to provide what would happen if Ms Conrad failed to exercise the Power of Appointment:
If my said daughter shall fail to so designate and appoint by her Last Will and Testament then such money shall be paid to the President for the time being of the Estia of Constantinopolis, Aristidu 7, Kolonike, Athens, Greece.
Estia of Constantinopolis (‘Estia’), is a non-profit organization in Greece that operates nursing homes primarily for the elderly near Athens.
When Ms Georges made the 1985 Will and when she died, Mr Kalvisoglou was Estia’s president, but he died in 2014. The current president is Mr Keskinoglou.
Ms Conrad’s 2017 Will explicitly exercised the Power of Appointment by appointing The Welfare Institution of the Jews of Athens, dba Restion Elderly Care Centre (‘Restion’). It is a non-profit association that operates southeast of Athens.
However, less than two months later, Ms Conrad made her 2018 Will in which she revoked all prior wills and left her entire estate to Christos Theodoropoulos of Athens. A Swiss lawyer gave his opinion that the 2017 Will was recognized as valid under Swiss law, that the 2018 Will is valid under Swiss law, and that it validly revoked the 2017 Will. A Swiss court appointed a notary as testamentary executor of Ms Conrad’s Will.
Royal Trust brought an application for the opinion, advice, and direction of the court. The facts raised a number of issues. I shall discuss them seriatim.
3. Analysis
3.1 Validity of the Power of Appointment
Justice Kent agreed that the language of the 1985 Will with respect to the Power was broad and somewhat vague. However, he held that it was not uncertain. The Will clearly directed that the property was for charitable purposes in Greece. Ms Conrad understood the terms of the Power, and Restion, the charity she selected, satisfied those requirements. Similarly, Ms Georges clearly identified her contingent beneficiary, Estia, and therefore the object of the Power was not uncertain.
3.2 The Revocation of Ms Conrad’s 2017 Will
Justice Kent held that the 2017 Will was valid. It complied with the formalities for wills imposed by Greek law and the expert evidence showed that it was also valid under the laws of Ms Conrad’s domicile, Switzerland. Further, expert evidence showed that the 2018 Will was valid in Switzerland and validly revoked the 2017 Will.
3.3 The Contingent Beneficiary Provision in the 1985 Will
3.3.1 Was it Uncertain?
Justice Kent did not accept the arguments of the Conrad estate that the contingent gift was void because (1) it was unclear whether it was made to President personally or ex officii; (2) it failed if it was made to the President personally, since he died; and (3) it also failed if it was made to the President ex officii, for in that case the money was held in trust for Estia and Greek law does not recognize trusts. Justice Kent conclude that Ms George’s intent clearly was to make a gift to the charity, Estia. Moreover, there was no evidence that she knew who the President of Estia was or had any kind of relationship with whoever was the President when she made her will. Besides, the gift was to the President ‘for the time being’, that is the President at the time of Ms Conrad’s death. Consequently, the gift was to the charity and the President was merely the means of ensuring that the charity got the money.[2]
3.3.2 Would the Trust Fail Under Greek Law?
The court had the benefit of two expert opinions on this issue. One opined that the trust would not be recognized in Greece and the trust relationship between the President and Estia was unenforceable in Greece. The other opined that the President functions as the judicial person of Estia itself and thus to gift to the President amounted to a gift to Estia. The second opinion went on to state that if a trust relationship existed between the current President and Estia under British Columbia law, such a trust would be recognized under Greek law.
Justice Kent held that the fact that Ms Georges was a Canadian citizen as the time of her death made all the difference. Under British Columbian law the trust was valid and therefore it would be recognized in Greece. Therefore the contingent gift virtute officii to Estia does not fail under Greek law.
—
[1] 2022 BCSC 1454.
[2] Justice Kent cited Lucey v Catholic Orphanage of Prince Albert, [1951] SCR 690, and Re Morton Estate, [1941] 1 WWR 310 (BCSC), as authorities on this point.
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Written by: Albert Oosterhoff
Posted on: January 16, 2023
Categories: Commentary
1. Introduction
Royal Trust Corporation of Canada v The Welfare Institution of the Jews of Athens[1] is a very interesting recent case. Not so much for its decision, which is unexceptional, but because of all the issues it raises: conflict of laws, the validity of a power of appointment, the validity of foreign wills made in different jurisdictions, the validity of a testamentary trust in a jurisdiction that does not recognize trusts, and uncertainty about the objects of the trust and of a contingent beneficiary and of the latter’s status. We come across these kinds of issues more often now than we used to because testators move about much more and have assets in different jurisdictions. For these reasons, it is worthwhile to have a look at the case.
2. Facts
Ms Georges was born in Constantinople (later renamed Istanbul), Turkey, in 1906. She lived most of her adult life in Turkey, Greece, and Switzerland. She was a Turkish citizen when she immigrated to Canada in 1978. Ms Georges’ husband predeceased her before she immigrated to Canada, and she never remarried. Ms Georges became a Canadian citizen and held a Canadian passport. She died in Victoria BC in 1986, having made a will there in 1985 (the ‘1985 Will’).
Ms Georges was survived by her daughter, Ms Conrad, who was born in Istanbul in 1936, but later became a resident and citizen of Switzerland in the 1950s. Switzerland was her domicile of choice. Ms Conrad died in 2019. She was twice married, but both husbands predeceased her. Ms Conrad made two wills, one in 2017 in Greece (the ‘2017 Will’), and a holographic will in 2018 in Switzerland (the ‘2018 Will’). Ms Conrad died in Greece in 2019.
Ms Georges’ 1985 Will appointed two persons as executors, but one later resigned and was replaced with Royal Trust. The court granted probate to the two named executors, and they distributed the residue of Ms Georges’ estate to Ms Conrad.
Clause 4(b)(a) of the 1985 Will created a testamentary trust (the ‘Trust’). It directed the executors to set aside certain bank deposits in the Royal Bank and pay the income to Ms Conrad ‘as long as she shall live’. The Trust is now worth approximately $500,000. The Will named Ms Conrad her mother’s sole residuary beneficiary. Paragraph 4(b) of the Will also created a Power of Appointment in favour of Ms Conrad. It provided:
If my daughter shall by her Last Will and Testament appoint sum [sic] reasonable charity within the country of Greece for such funds they shall be delivered in accordance with the directions made in such Last Will and Testament of my said daughter.
But paragraph 4(b)(b) went on to provide what would happen if Ms Conrad failed to exercise the Power of Appointment:
If my said daughter shall fail to so designate and appoint by her Last Will and Testament then such money shall be paid to the President for the time being of the Estia of Constantinopolis, Aristidu 7, Kolonike, Athens, Greece.
Estia of Constantinopolis (‘Estia’), is a non-profit organization in Greece that operates nursing homes primarily for the elderly near Athens.
When Ms Georges made the 1985 Will and when she died, Mr Kalvisoglou was Estia’s president, but he died in 2014. The current president is Mr Keskinoglou.
Ms Conrad’s 2017 Will explicitly exercised the Power of Appointment by appointing The Welfare Institution of the Jews of Athens, dba Restion Elderly Care Centre (‘Restion’). It is a non-profit association that operates southeast of Athens.
However, less than two months later, Ms Conrad made her 2018 Will in which she revoked all prior wills and left her entire estate to Christos Theodoropoulos of Athens. A Swiss lawyer gave his opinion that the 2017 Will was recognized as valid under Swiss law, that the 2018 Will is valid under Swiss law, and that it validly revoked the 2017 Will. A Swiss court appointed a notary as testamentary executor of Ms Conrad’s Will.
Royal Trust brought an application for the opinion, advice, and direction of the court. The facts raised a number of issues. I shall discuss them seriatim.
3. Analysis
3.1 Validity of the Power of Appointment
Justice Kent agreed that the language of the 1985 Will with respect to the Power was broad and somewhat vague. However, he held that it was not uncertain. The Will clearly directed that the property was for charitable purposes in Greece. Ms Conrad understood the terms of the Power, and Restion, the charity she selected, satisfied those requirements. Similarly, Ms Georges clearly identified her contingent beneficiary, Estia, and therefore the object of the Power was not uncertain.
3.2 The Revocation of Ms Conrad’s 2017 Will
Justice Kent held that the 2017 Will was valid. It complied with the formalities for wills imposed by Greek law and the expert evidence showed that it was also valid under the laws of Ms Conrad’s domicile, Switzerland. Further, expert evidence showed that the 2018 Will was valid in Switzerland and validly revoked the 2017 Will.
3.3 The Contingent Beneficiary Provision in the 1985 Will
3.3.1 Was it Uncertain?
Justice Kent did not accept the arguments of the Conrad estate that the contingent gift was void because (1) it was unclear whether it was made to President personally or ex officii; (2) it failed if it was made to the President personally, since he died; and (3) it also failed if it was made to the President ex officii, for in that case the money was held in trust for Estia and Greek law does not recognize trusts. Justice Kent conclude that Ms George’s intent clearly was to make a gift to the charity, Estia. Moreover, there was no evidence that she knew who the President of Estia was or had any kind of relationship with whoever was the President when she made her will. Besides, the gift was to the President ‘for the time being’, that is the President at the time of Ms Conrad’s death. Consequently, the gift was to the charity and the President was merely the means of ensuring that the charity got the money.[2]
3.3.2 Would the Trust Fail Under Greek Law?
The court had the benefit of two expert opinions on this issue. One opined that the trust would not be recognized in Greece and the trust relationship between the President and Estia was unenforceable in Greece. The other opined that the President functions as the judicial person of Estia itself and thus to gift to the President amounted to a gift to Estia. The second opinion went on to state that if a trust relationship existed between the current President and Estia under British Columbia law, such a trust would be recognized under Greek law.
Justice Kent held that the fact that Ms Georges was a Canadian citizen as the time of her death made all the difference. Under British Columbian law the trust was valid and therefore it would be recognized in Greece. Therefore the contingent gift virtute officii to Estia does not fail under Greek law.
—
[1] 2022 BCSC 1454.
[2] Justice Kent cited Lucey v Catholic Orphanage of Prince Albert, [1951] SCR 690, and Re Morton Estate, [1941] 1 WWR 310 (BCSC), as authorities on this point.
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