At our law office in Stittsville (near Ottawa), we have talked with clients who are beneficiaries of a Henson Trust. Most often, a parent or other relative has included a Henson Trust in his or her Will to help the trust beneficiary who has a disability. Receiving an inheritance by way of a properly-drafted Henson Trust can mean the trust beneficiary’s benefits under the Ontario Disability Support Program (‘ODSP’) won’t be affected. A Henson Trust can also be set up in a separate document.
In some cases, a trust beneficiary has difficulty getting information about the Henson Trust and how it is being managed from the person responsible for administering the Henson Trust (called a ‘trustee’). In extreme cases, a trust beneficiary may be hoping to remove the trustee and replace the trustee with another person who is more cooperative.
Generally, a capable adult (18 or older) who is a trust beneficiary has a right to request an accounting of the trustee. If the trustee refuses to provide the information, the trust beneficiary can ask a judge for an order requiring the trustee to pass his or her accounts. A proper accounting provides the details of assets at the start, what has happened to those assets, details of income and expenses or disbursements, how the funds have been invested, what assets are left at the end of the accounting period, what trustee compensation is being charged and how it was calculated. This also applies to an executor or estate trustee.
If a trust beneficiary is 18 or older but incapable and there is no attorney for property or guardian of property of the trust beneficiary, the Public Guardian and Trustee must be involved. If a trust beneficiary is a minor (under 18), the Office of the Children’s Lawyer is involved to protect the minor’s interests. This is also true for minor beneficiaries of an estate.
Whether a trustee (and executor or estate trustee) can be removed and replaced is not a question easily answered without considering a number of issues. For example, it is necessary to review trust document or Will and the laws that govern trustee appointments. A trust document or Will can include provisions for a change of trustee but this is not common. In addition to the trust document itself, we need to review the legislation and court cases which deal with this question. Generally, removing a trustee (or executor or estate trustee) who refuses to voluntarily resign is not easy.
If you or a loved one is the beneficiary of a Henson Trust and you have questions, call 613-869-9915 or email ([email protected]) us at our Ottawa office to book an appointment to meet with us. Sometimes the legal fees for a beneficiary to obtain legal advice about a trust can be paid from the trust. We will review your trust document, discuss your rights and the responsibilities of the trustee, and answer any questions you have.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
