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In This Volume

  • 24 (1) A trust for a specific noncharitable purpose that creates no enforceable equitable interest in a specific person must be construed as a power to appoint the income or the capital, as the case may be.
  • (2) Unless a trust described in subsection (1) is created for an illegal purpose or a purpose contrary to public policy, the trust is valid so long as and to the extent that it is exercised either by the original trustee or the original trustee’s successor within a period of 21 years, even if the disposition creating the trust showed an intention, either expressly or by implication, that the trust should or might continue for a period longer than that period.
  • (3) Despite subsection (2), if the trust is expressed to be of perpetual duration, the court may declare the disposition to be void if the court is of the opinion that by doing so the result would be closer to the intention of the creator of the trust than the period of validity provided by this section.
  • (4) To the extent that the income or capital of a trust for a specific noncharitable purpose is not fully expended within a period of 21 years, or within any annual or other recurring period within which the disposition creating the trust provided for the expenditure of all or a specified portion of the income or the capital, the person who would have been entitled to the property comprised in the trust, if the trust had determined at the expiration of the 21 year period, is entitled to that unexpended income or capital.
  • (5) Nothing in this section applies to any discretionary power to transfer a beneficial interest in property to any person without the furnishing of valuable consideration.

1979-321-21.

CASE LAW

In Doukhobor Heritage Retreat Society #1999 v. Vancouver Foundation, 2019 BCSC 54, the petitioner registered charity sought the return of $175,000 from the respondent foundation donated years earlier to be “held permanently” and invested in accordance with the Vancouver Foundation Act, R.S.B.C. 2000, c. 1. The income was to be disbursed each year to the petitioner to support a retreat. The petitioner claimed it had an alternative proposal for use of the funds that would better support the retreat. The respondent refused to release the funds, claiming its hands were tied. The court granted the petition, saying the petitioner was a charitable purpose trust, falling under two of the four recognized heads and accordingly not voidable under the Perpetuity Act, R.S.B.C. 1996, c. 358. The objects of the trust were no longer sustainable as the fund was currently structured, and the continued existence of the retreat and its programs was threatened, contrary to the purpose for which the fund was established. The appellate court held that the trial judge had erred in his interpretation of the relevant provision of the Vancouver Foundation Act. The fund terms did not reserve to the donor the right to give future directions as to the use or investment of the funds or the right to revoke the donation. Properly construed, the statutory provision does not oblige the respondent to follow directions to alter or revoke the terms of a donation after the gift is complete.