THE ADVOCATE 507
VOL. 80 PART 4 JULY 2022
Suppose a married testator were to have made an inter vivos gift of property
many years ago to a third party (a friend, relative, lover) or had named
that person as a joint tenant or settled that property on a trust in favour of
that person. Imposing a substantive constructive trust over that property in
favour of the estate so that s. 60 would apply implies the following: the
donee received the property wrongfully, held it as bare trustee for the testator
since the time of gift, wrongfully reported any income from the property
on their tax return when it should have been reported by the testator
as the beneficial owner, and committed a breach of trust by selling the property
or otherwise dealing with it for his or her own benefit, all based on
what turns out, through no fault of their own, to be inadequate provision
many years later in the testator’s will for their spouse and children. This
seems to me to be such a far-fetched conclusion that it would take the most
obscure and unlikely set of circumstances to justify it.
The mere fact that the testator was married at the time of the gift does
not mean that the donee obtained the property wrongfully: as noted above,
s. 60’s underlying policy does not give the testator’s spouse any legal or beneficial
interest in the property while the marriage continues. Moreover, it is
unlikely that the donee is the keeper of the testator’s conscience: if the testator
chooses to cheat on their spouse by giving property to a lover, then (at
least legally speaking) that is not the lover’s problem. The donee cannot be
said to have acted wrongfully, in any trust sense, in keeping the property.
To put it another way, the “conscience” that we refer to when we speak
of a “good conscience constructive trust” is that of the donee, not the
donor.43 Has the donee done anything that in good conscience could be said
to be wrong and thus require that they hold the property on a constructive
trust for the donor? In the fact pattern suggested by Weintraub and Storey,
I think the answer is “no”.
The other fundamental flaw in their theory is this: to plead a constructive
trust, the claimant must allege and prove that a monetary award would be
an insufficient remedy.44 Given the context of s. 60, it seems that very few
cases would arise where a monetary award would not be a sufficient remedy
to replace the asset that the testator gave away. Yet, to claim a monetary
award, one must have a claim for damages of some sort. Here, there seems
to be none.
While a litigator’s job is always to look for a better argument, in my view
the idea of applying for a substantive constructive trust to bring s. 60 into
play is unlikely to succeed.
ENDNOTES
1. Mark S Weintraub, QC, & Polly Storey, “Binding the
Will-Maker’s Conscience: Is It Time to Use the Good
Conscience Substantive Trust in Wills Variation
Cases?” (2022) 80 Advocate 357.