Lionel Smith, ‘A Tale of Two Patrimonies: Limits on the Flexibility of Trust Law’

ABSTRACT
In Yared v Karam, 2019 SCC 62, the Supreme Court of Canada had to rule on the interaction of the Quebec law of trusts with the mandatory rules on the ‘family patrimony’. Since the Quebec trust is a ‘patrimony by appropriation’, the case involved the legal interaction of two patrimonies. There are lessons in the case for civil lawyers and for common lawyers, and indications of where the Supreme Court of Canada needs still to go in its trust law jurisprudence. Because of the different conceptual structures of the common law trust and the Quebec trust, the ways in which settlors may fail to achieve their objectives – in particular, by only creating ‘illusory trusts’ – are different in the two systems.

Smith, Lionel, A Tale of Two Patrimonies: Limits on the Flexibility of Trust Law (December 31, 2020). (2021) 40 Estates, Trusts and Pensions Journal 139-165.

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