One of the beneficiaries of a 1995 trust, the settlor’s daughter-in-law, died unexpectedly in 2009. The settlor’s son was also a beneficiary of the trust but only for capital. He purported to begin taking income in 2009 anyway. The settlor applied to the Court of Queen’s Bench of Manitoba for rectification in 2013. The court granted rectification to make the son an income beneficiary but only for 2013 and on because to do otherwise would “rewrite history”. Edwin Harris notes that the whole point of rectification is to rewrite history, and so it would seem inconsistent to rectify the trust document (to rewrite it) but only to the time when the application was made. Summary of Edwin Harris comment on Shinewald v Putter et al, 2014 MBQB 254, in Tax Hyperion 12:5 (May 2015) at 1.
Additional note: After I posted the note above, Craig Burley pointed out to me that the court in Shinewald was varying the trust, not rectifying it. The trust terms were being amended, not to make them agree with the settlor’s original intention, but to change the terms of the trust as such (to reflect a new intention, as it were). The judge noted the following at ¶21:
[21] Furthermore, I am not convinced that the failure to name Edward Shinewald at the time that the Trust was created was a mistake. Generally speaking, documents prepared to evidence an arrangement to obtain tax advantages should be taken to express the intent of the settlor. In this case, that means that Edward Shinewald was never intended to be an income beneficiary until now. The situation might be different if there was evidence that the failure to name him as an income beneficiary was a clerical error, but there is no evidence from the professionals who designed or prepared the Trust that such an oversight occurred.
In light of the foregoing, the judge’s refusal to make the order retroactive is understandable.
