Deceased’s right to share of family patrimony could not be denied by use of trust

Division of Property – Matrimonial home

Deceased’s husband set up trust to protect family assets for benefit of their four children . Trust, which was controlled by husband, acquired family residence . Deceased left residence and filed for divorce, but died without having obtained divorce . Liquidators of succession of deceased sought declaration in Superior Court that value of family residence should be included in division of family patrimony . Trial judge decided that value of residence ought to be included in family patrimony despite fact that it was held under trust and not owned directly by one of spouses. Husband’s appeal was allowed . Court of Appeal held that no value from family residence ought to be included in family patrimony. Liquidators appealed to Supreme Court of Canada. Appeal allowed . Trial decision did not contain a reviewable error that justified the intervention of the Court of Appeal. Trial judge correctly anchored his decision in “rights which confer use” of art. 415 of Civil Code of Québec. Deceased’s right to share of family patrimony could not be denied by use of trust. Therefore, trial judge’s decision should be restored.

Yared v. Karam (2019), 2019 CarswellQue 10729, 2019 CarswellQue 10730, 2019 SCC 62, 2019 CSC 62, Wagner C.J.C., Abella J., Karakatsanis J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2018), 2018 CarswellQue 1400, 2018 QCCA 320, Gagné J.C.A., St-Pierre J.C.A., and Mainville J.C.A. (C.A. Que.).

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