There are many circumstances in which a trustee may encounter a difficult situation: perhaps the express provisions of the Trust Deed or Will under which he or she is acting as a trustee are patently incorrect or poorly drafted; sometimes the terms of the constating trust document are correct, but they represent the wishes of the settlor from a time when the actual circumstances of the beneficiaries were far different than they are currently; on occasion, a trustee is faced with the consequences of his or her own actions which have far-reaching and unintended negative consequences on the trust property or the position of the beneficiaries. In each of these situations, the trustee should seek qualified legal advice about the options available to deal with these difficult situations.
The main focus of this paper is to address the options available to a trustee where, through his or her own action an unintended negative consequence has arisen which affects the trust property or the beneficiaries in some way. These situations often arise where the trustee has breached his fiduciary duty or where professional advisors have provided incomplete or inaccurate advice. Recent case law out of the United Kingdom, which will be discussed in detail below, has influenced the law in this area and the circumstances under which a trustee can successfully claim that his actions, or the transaction as a whole, should be set aside.
There are two main ways to approach the proposed rescission of trust transactions: the rule in Hastings-Bass and the Doctrine of Mistake. We will deal with both of these concepts in detail below.
This paper will also briefly touch on the options available to trustees when faced with an original document (i.e. a Trust Deed or Will) containing terms that are obviously original drafting errors and do not align with the settlor’s intentions or with terms that have become undesirable over time as a result of external circumstances.
II. UNINTENDED CONSEQUENCES ARISING FROM TRUSTEE ACTIONS
Fundamentally, a trustee is under a fiduciary duty to deal with and manage the trust property on the terms set out in the trust in the best interests of the beneficiaries. In doing so, a trustee must act within the prescribed limitations of his or her discretion. Where a trustee makes a decision or takes certain action within the scope of his or her discretion and negative consequences arise, can he or she claim that a mistake was made and have that decision or action set aside? Two major concepts deal with these type of situations: the rule in Hastings-Bass and the Doctrine of Mistake.
A. THE RULE IN HASTINGS-BASS
The rule in Hastings-Bass is a rule of equity arising from the 1974 English Court of Appeal decision of the same name. This rule has, historically, been well established in England and certain other jurisdictions, but has not been readily applied in Canada. As discussed in more detail below, the recent companion cases of Pitt and Futter call into question the wide application of the rule in Hastings-Bass on a go-forward basis.
The Hastings-Bass case involved two trusts, one made in 1947 (for the benefit of Captain Hastings-Bass for life, and then for his sons who attain the age of 25 within 21 years of his death) and another made in 1958 (for the benefit of Capital Hastings-Bass’s eldest son, William, for life, and then for William’s children when they reached the age of 21). In order to save estate duties, the trustees of the earlier trust exercised a statutory power of advancement to transfer the trust property from the 1947 trust to the 1958 trust, on an understanding that the transfer would not offend the rule against perpetuities. As a result of a later House of Lords decision, it became clear that at least part of the transfer was void for perpetuity. The trustees applied to the Court for a determination as to whether or not estate duty was payable as a result of the apparently void transfer. In considering the issue, the Court of Appeal made the following statement:
… where by the terms of a trust … a trustee is given a discretion as to some matter under which he acts in good faith, the Court should not interfere with his action notwithstanding that it does not have the full effect which he intended, unless (1) what he has achieved is authorized by the power conferred upon him, or (2) it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should have taken into account or (b) had he not failed to take into account considerations which he ought to have taken into account. (emphasis added)
The Court of Appeal concluded that the trustees had not failed in either respect and therefore did not invalidate the actions of the trustees. Instead it severed the acceptable part of the transfer (i.e. the gift to William for life) from the void part of the transfer (i.e. the gift over to William’s children) on the basis that the trustees had intended to make an immediate transfer to William, notwithstanding that the avoidance of estate duties was also a primary motivation.
In the 1990 case Mettoy, the court quite helpfully restated the rule in Hastings-Bass in the positive, though arguably skewing the language somewhat from the original formulation of the rule:
Where a trustee acts under a discretion given to him by the terms of the trust, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account. (emphasis added)
In other words, the rule in Hastings-Bass (as it has been developed by further case law over the years) appears to stand for the proposition that the Court may invalidate a discretionary act of a trustee who has acted without considering a factor which he should have considered prior to performing the act. A simple example of this is where a trustee makes a discretionary distribution from the trust property without considering the tax consequences of doing so. It requires, in essence, the trustee to claim that he breached his fiduciary duty to act as a prudent person would by not considering all relevant factors. Often this is as a result of having not been advised of all relevant factors by the trustee’s professional advisors. As discussed further below, such circumstances could clearly lead to an action in professional negligence by the trustee against the advisors.
More recently, the rule has been further re-stated as follows:
Where a trustee acts under a discretion given to him by the terms of the trust, but the effect of the exercise is different from that which he intended, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought not to have taken into account. (emphasis added)
While these various iterations of the rule do not say it in plain language, the effect of these statements is that, if the trustee did not take into account considerations which he ought to have taken into account, he must have breached his fiduciary duty in so acting. We then become concerned with potentially applying this rule where the trustee has somehow breached his duties by taking (or failing to take) certain action. This could give rise to potential claims by the beneficiaries against the trustee for breach of trust or for breach of fiduciary duty.
It is interesting to note that while the UK equivalent of CRA (Her Majesty’s Revenue and Customs (HMRC) or its predecessor) were involved in the Hastings-Bass case, they declined to take part in most other cases involving the invocation of the rule until recent years. One wonders whether CRA would be so passive if the rule were invoked more frequently in Canada.
- Futter v. Futter
In the 2010 Futter lower court decision, the reader gets the distinct impression that the Court was displeased with the state of the law developed out of Hastings-Bass. The Court refers to the Futter case as “another application by trustees who wish to assert that they have acted in an untrustee-like fashion and so have failed properly to exercise a power vested in them”. However, despite the implication in his tone, the lower Court in Futter applied the rule in Hastings-Bass, stating that it was not appropriate for a court of first instance to reconsider the rule.
The facts in Futter can be summarized as follows. The trustees had obtained legal advice in connection with the exercise of a power of enlargement and a power of advancement, but the advisors failed to turn their minds to a relevant taxation provision until after the transaction had occurred. In the result, several of the beneficiaries incurred unexpected capital gains tax liabilities. Applying the Rule in Hastings-Bass, the lower court determined that the trustees’ exercise of their powers were void.
At the Court of Appeal level, the Court took the opportunity to reconsider the Rule in Hastings-Bass, and reversed the lower court’s decision, thus reinstating the trustees actions. It was decided that, where a trustee acts within the realm of his power, his actions or decisions will not be voidable where he has taken reasonable steps and relied on professional advice. This decision was confirmed by the Supreme Court in 2013.
2. Pitt v. Holt
In Pitt v. Holt, Mr. Pitt received an award of damages following an accident which had left him permanently incapacitated. His financial advisors advised Mr. Pitt’s wife, as her husband’s receiver, to settle the funds into a discretionary trust. The professional advice however, failed to take inheritance tax into account, and so was not set up to effectively deal with avoiding such tax. This resulted in an immediate tax consequence as well as possible future tax liabilities. Mr. Pitt’s personal representatives brought a claim seeking to effectively undo the settlement of the trust.
As with Futter, the lower level court in Pitt applied the Rule in Hastings-Bass and made void the acts of Mrs. Pitt, as receiver, in settling the trust for her husband. The Court of Appeal disagreed with the application of the Rule and commented that the current state of the Rule had deviated from what had originally been its basic application in the original Hastings-Bass case.
The Court of Appeal determined that the correct approach in cases such as these is that the acts of the trustee would only be voidable (not void) if there was a breach of fiduciary duty by the trustee. If, based on this, such acts are in fact voidable, they may be set aside by an application to Court made by a beneficiary, not the trustee. In most cases, the Court suggested, if professional advice had been sought and followed, there could be no breach of duty on the part of the trustee. The Court of Appeal did not allow the settlement of the trust to be reversed on the basis of the Rule in Hastings-Bass. This was upheld by the Supreme Court in 2013.
In the result, this leaves the Rule in Hastings-Bass available to be applied in only very limited circumstances. While a trustee may still have an action in professional negligence against the professionals who provided the incorrect advice, an application by a trustee in reliance on Hastings-Bass will almost certainly be unsuccessful in circumstances where the trustee has obtained and acted upon professional advice. However, Hastings-Bass may still be invoked by a beneficiary in circumstances where he or she can allege a breach of duty by the trustee. While the more broadly applied Rule in Hastings-Bass was never really adopted in Canada, it remains to be seen whether its more narrow application developed through Pitt and Futter will receive more attention by Canadian courts in the future.
B. THE DOCTRINE OF MISTAKE
Historically, case law on the setting aside of transactions on the basis of mistake largely focused on the difference between a transaction’s effect and its consequences. Where the actual effect of the transaction was unintended, courts tended to be more likely to grant rescission of the original transaction that led to the unintended effect. However, where it was the consequences of the transaction that were unintended, rescission was generally not available. In practice, this distinction was difficult to determine and inconsistently applied, and was ultimately eliminated in the Supreme Court’s decision in Pitt.
1. Pitt v. Holt
While the application in Pitt was denied with respect to the Rule in Hastings-Bass, the Supreme Court allowed the transaction to be set aside on the basis of mistake. In so doing, the Court rejected the old three part test to be met under the Doctrine of Mistake and held that to set aside a transaction on the basis of a mistake should not be subject to strict rules. Instead, they determined that a mistake of law which is basic to the transaction can be sufficient to permit the Court to grant rescission. In coming to this conclusion the Court states:
I would provisionally conclude that the true requirement is simply for there to be a causative mistake of sufficient gravity; and, as additional guidance to judges in finding and evaluating the facts of any particular case, that the test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction.
On the facts in Pitt, it was determined that there was nothing abusive about trying to plan around the inheritance tax liability, and that the parties were simply in error about the tax consequences of the transaction. The Supreme Court was also careful to note that, had mistake been raised in Futter, the Court would have had a more difficult time coming to the same conclusion, since the facts in that case involved a tax-avoidance scheme gone wrong.
2. Re Pallen Trust
The mistake doctrine aspects of Pitt were recently applied in the B.C. case Re Pallen Trust. In this case, the trust sought rescission of two dividends received by it which had led to a proposed tax reassessment by CRA. The Crown opposed the application by the trust on the basis that rescission of the dividends would effect retroactive tax planning to avoid tax liabilities.
On the facts of the case, the professional advisors had proposed a plan whereby they would walk the trust and its related corporate structure into the application of subsection 75(2) of the Income Tax Act (Canada) such that certain attribution rules would apply to certain tax-free inter-corporate dividends, resulting in a tax-advantageous structure. This was based on the common understanding of the application of subsection 75(2) at the time.
After these transactions had been implemented, the decision in Sommerer v. Her Majesty the Queen was released, which stands for the position that where a trust acquires property for fair market value consideration, subsection 75(2) of the Income Tax Act (Canada) will not apply. It was on this basis that CRA reassessed the trust in Re Pallen Trust.
The Court summarized the test for rescission set out by the Supreme Court in Pitt:
In summary, the test as set out in Pitt is that a court may rescind a voluntary disposition where it is found that a mistake of sufficient causative gravity was made that would make it unconscionable, unjust or unfair to leave the mistake uncorrected.
In its findings, the BC Supreme Court determined that Pitt was persuasive and chose to apply the approach set out in Pitt to the facts in Re Pallen Trust. In the result, it held that the transactions could be reversed on the basis of mistake. This may be surprising to some based on at least a portion of the evidence available to the Court. For example, there was evidence of correspondence from the advisors to their clients that indicated that the dividends would “likely not be taxable” and advised that no assurances as to tax results could be given. Many would argue that the risks of the plan were communicated, that the tax results of the transactions were not a sure thing and that the clients accepted the risks with full knowledge when they undertook the transactions.
Furthermore, the evidence also provided that the two main purposes for carrying out the transactions were creditor protection and tax minimization. One might argue that equitable relief should not be available to those who have sought relief with these facts, given that they do not appear to have come to the court with the cleanest of hands.
The Court however, considered several other factors in coming to its decision, including the trust’s submission that CRA’s proposal to reassess the trust was contrary to its published position on the meaning and application of subsection 75(2) as it stood at the time the plan was designed and implemented, and the fact that the plan strongly emphasized the resultant tax implications. In so doing, the Court drew an inference that CRA would likely not have reassessed the Pallen Trust prior to the Summerer decision, as the trust’s intended effect of subsection 75(2) was in line with CRA’s administrative position before such decision. It is this aspect of the facts which led the Court to a determination that it would be unfair to refuse the application for rescission. While acknowledging the open risk of the plan, the assumption of risk in this case was not sufficient to refuse relief given the general and common understanding of the effect of subsection 75(2) in place at the time.
III. ORIGINAL DRAFTING ERRORS
Unfortunately, on occasion, drafters make mistakes. Sometimes these mistakes are accidental, such as when an experienced trust drafter unintentionally deletes an entire key section while editing a document, and does not notice that such key section is missing in the final product. Other times the mistakes, while still accidental, are more a result of the drafter’s inexperience or lack of knowledge rather than an error arising from poor editing or proof-reading. An example of this is where a draftsperson fails to realize, and therefore fails to provide for in the document, that, in order to get the benefit of a spousal rollover on death, the surviving spouse must be entitled to receive all of the income (and be the only person entitled to receive the capital) of the trust fund.
If the original draftsperson him or herself discovers such errors, these circumstances obviously raise more issues than if the advisor is only the one who discovers the error originally made by some other draftsperson. If you realize that you have made such an error (or are advised by someone else that such an error has been found in a document you have drafted), a phone call to your insurer is certainly in order.
However, if you realize that such an error has been made in the past by another draftsperson, your job is then to determine how, if at all, this situation can be remedied. Depending on the type of original error and the gravity of the consequences, different remedies will be available or desirable.
A. POWER TO AMEND
If the error in question is contained in a document relating to a inter vivos trust, there may also be contained in that document an express power to amend at least certain provisions of the document. Assuming that the subject error falls within the limitations of those provisions (e.g. the Deed provides for a power to amend the administration provisions and the error is regarding such provisions), then the error can fairly easily be fixed by invoking the power and documenting the amendment accordingly.
While some commentators suggest that there may be an “implied power” to amend a trust in circumstances where it is reasonably necessary for making sense of the terms or for carrying out the express provisions, relying on such a power may prove difficult, especially if there are resulting tax consequences.
It is important to note that any amendment made under a power to amend is effective from and after the date of the amendment and would not have retroactive effect. Therefore, where it is crucial for tax or other reasons for the error to have been corrected from the outset of the settlement, invoking a power to amend may not be the most effective solution.
B. CONSENT OF BENEFICIARIES (SAUNDERS V. VAUTIER)
Saunders v. Vautier, an 1841 English trusts case, is the long-standing authority for the proposition that, where all of the beneficiaries of a trust are of age and under no disability, the beneficiaries can agree together to wind-up the trust.
Whether the same principal applies to a mere amendment to the trust, rather than a full-scale termination of the trust, is unclear. While there is commentary and obiter comments in case law to the effect that the rule in Saunders v. Vautier allows for beneficiaries of a trust, where they are all sui juris, to vary the trust as well as to collapse it, the writer is not aware of any case law that actually applies the rule to a variation and there are even some authorities which call it into question. Technically, the requirements in Saunders v. Vautier does not require the consent of the Court as a precondition to the application of the rule. Therefore, perhaps it is not that surprising that there is no case law on the point, since in circumstances where all of the beneficiaries agree, who is going to dispute the decision and take it to Court?
This rule may be useful where there is a clear error in the document and all of the beneficiaries are of age and not under any disability. If they all agree, the correction or amendment could potentially be made without the involvement of the court. Given the uncertainty as to whether the rule applies to a variation of the trust terms and not just the wind-up of the trust, one might query whether CRA would require notice if the effect of the variation were to alter the tax consequences of the trust or a transaction with which it is involved.
C. COURT APPLICATIONS
In circumstances where the rule in Saunders v. Vautier cannot apply (assuming, for present purposes, that it would otherwise apply to amend or vary a trust), such as for example, where there are minor or unborn beneficiaries, an application to Court will have to be brought to seek the Court’s approval of the variation. The B.C. Trust and Settlement Variation Act, allows the Court to approve a variation of a trust on behalf of a minor, unborn or unascertained beneficiary of the trust.
A Court application brought to seek rectification of written documents so that they are representative of the actual intentions of the parties will likely be successful with sufficient evidence. Snell describes equitable rectification as follows:
If by mistake a written instrument does not accord with the true agreement between the parties, equity has power to reform, or rectify, that instrument so as to make it accord with the true agreement. What is rectified is not a mistake in the transaction itself, but a mistake in which that transaction has been expressed in writing.
Like the other options available to amend or vary a trust, a variation approved by Court order will be prospective in effect. There is no inherent power in the court to approve common variations with retroactive effect. With minor exceptions, this is generally the position taken by CRA.
Addressing, in detail, the pre-requisites and conditions necessary to bring such Court application is beyond the scope of this paper. I would draw the reader’s attention to two B.C cases, Snow White Productions and McPeake, which sets out the current state of the law in this area.
D. POTENTIAL TAX ISSUES
It has long been CRA’s position that significantly amending a trust may lead to an effective “resettlement” of the trust for tax purposes, which will cause a deemed disposition of the trust property.
Where an amendment has been undertaken to correct a mistake in the original drafting of the document, such amendment is unlikely to result in tax consequences provided that there is adequate evidence to support the original error. If, however, though the original document may have been incorrect, but the trustees still acted upon the terms as written, significant amendment upon realization of the error may have tax consequences. Advisors should keep this issue in the front of their mind when considering whether to advise the making of an amendment to correct the original error.
E. ETHICAL ISSUES
Some drafting errors are obvious: the planning letter specifically described a certain provision, file notes set out great detail, correspondence from the client confirms their understanding of the terms, and you, as the advisor, drafted the document under the mistaken belief that the missing (or incorrect) provision was actually there (or was actually correct). Taking steps to correct the error based on the strategies outlined above may be a simple task.
Not all situations are so straight-forward. Imagine a new client coming to see you with an old Trust Deed. The Trust was set up by the client’s father, who may be dead, incapacitated, estranged from his children or inappropriately influenced by his children. The client tells you that although the Trust says that all of the father’s children are to share equally in the trust fund, it had actually been the father’s intention for the client to receive a greater share, since he was the only one of his brothers and sisters to be involved in the family business. This situation may not be so easily resolved. There may be little or no contemporary evidence, if the solicitor’s file was destroyed long ago, if the client does not know who prepared the trust originally, or the client may be reluctant to tell you if such information is unfavourable to his purpose. Even if the father is alive, has capacity and tells you in his own words that this is the truth, there may be some degree of undue influence involved between the son and the father. Certain of these circumstances may not be reason for the advisor to decline to act, it may simply raise practice issues regarding who you take your instructions from, who is present when you meet with the father and how far back you dig for more information.
There may be circumstances where an advisor, while doing routine work for the trust, discovers an error that has not been noticed previously. The advisor may be tempted to do nothing, and think that if no one else has noticed the error all these years, it can probably stay undetected for many more years. This is of course an incredibly risky position to take, especially if the error would have serious tax or legal ramifications. A difficult ethical issue such as this one must be addressed head-on, particularly if the advisor who discovers the error is also the one who created the error.
IV. IMPRACTICAL OR UNDESIRABLE TERMS
It is not difficult to imagine a situation in which a settlor establishes a trust for the benefit of his children and grandchildren that provides for capital distributions to the grandchildren when they reach the age of 25 or 30. At the time of the settlement, those grandchildren were likely adorable toddlers, fun-loving children or happy teenagers, eagerly visiting their grandparents on summer vacation and school holidays. It would have been difficult for the settlor to have imagined that little Johnny or little Sarah would become a drug addict, an irresponsible spend-thrift or a trapped in an abusive marriage with a controlling spouse by the time they attained 25 years of age.
In these circumstances, the trustee would be bound to follow the terms of the trust, and make the mandatory capital distribution to the troubled young person as so pre-ordained. However, if the Trust contains the necessary terms, the trustee may have the ability to alter the distribution of trust property so that the distribution to the subject beneficiary does not have to occur.
Consider also a situation where the original Deed of Settlement set a final distribution date at the 21st anniversary of the Trust, but in the circumstances, there are no significant accrued capital gains with respect to the trust property, and it would be desirable to keep the trust property in trust beyond the 21st anniversary. In such a case, there is nothing wrong with the way the Trust is drafted (except perhaps for a lack of flexibility) but it may nevertheless be desirable to find a way for the trustee to be able to alter the terms so that the trust can potentially last until the expiration of the permitted perpetuity period.
Alternatively, perhaps a determined and controlling settlor created a trust which allowed for the distribution of income only and specifically prohibited the encroachment of capital. Now the 21st anniversary is approaching and a significant tax liability will result. It may make sense to distribute the capital to the beneficiaries on a rollover basis if the terms of the trust can be amended to do so, rather than take the tax hit and do nothing.
A. POWERS TO AMEND, APPOINT, TRANSFER TO A NEW TRUST, ETC.
If the Trust in question has a power to amend, as discussed in more detail above, this power can certainly be applied to amend undesirable provisions, provided that such amendments are within the scope of the power. In many circumstances however, where there is a power to amend, such power may be limited to administrative provisions only and may not extent to the dispositive provisions which are most likely to be the subject of the proposed amendment.
Where there is no power to amend, or where the power to amend is too limited in its scope, a power to appoint or encroach upon the capital of the trust property may be utilized if such a power is contained in the instrument. A power to appoint will allow the trustees to appoint some or all of the trust property held in the discretionary trust for the benefit of one or more of the beneficiaries. This power can then essentially be used to appoint the trust property on new terms for the benefit of the same beneficiaries. This would, for example, allow strict capital distribution provisions to be extended or amended completely by appointing on terms which allowed for continued discretionary distributions only.
Similar to a power to appoint, there may be a power to transfer some or all of the trust property to a new trust for the benefit of one or more of the beneficiaries. This would provide the scope for a new trust to be settled on terms that are more in line with current circumstances.
B. POTENTIAL TAX ISSUES
Depending on the specifics of the undesirable issue, and the other terms of the trust, it may make sense in some circumstances to step back from the whole situation and re-think the structure. Is there a power to encroach on the capital in advance of the mandatory distribution date? Can the capital be distributed to the parents who could then re-settle it onto a Joint Partner Trust? Obviously, tax issues are going to be huge considerations here depending on the trust property and the tax attributes of the same. Nevertheless, taking the time to think of less obvious solutions may give rise to a more creative outcome. Even if the tax consequences of the outcome are more significant than they otherwise would be, it may make sense to walk into those tax consequences if the alternative is so highly undesirable.
As discussed above, where a trust is substantially amended, it may result in a resettlement of the trust for tax purposes. For this reason, amendments to trust terms should never be made without an in-depth consideration of the tax consequences. Where trust assets with accrued gains can be distributed to beneficiaries in advance of the amendment, this will reduce the potential impact of a determination by CRA that the amendment resulted in a resettlement. Where such a distribution is not possible or impractical and amendments are necessary, steps should be taken to ensure that the amendments made are the least disruptive possible. This would hopefully lead to the conclusion that the amendment did not resettle the trust.
In some circumstances, an amendment may be necessary to avoid inevitable tax consequences (such as the case where there is no power to encroach upon the capital of the trust property prior to the 21 year deemed disposition). In other situations, the amendment itself may cause tax consequences either immediately or in the future (such as the case where a mandatory capital distribution to an addict child is determined to be undesirable, so the trust property is distributed to the parents prior to the capital distribution date; as a result, the trust property will form part of the estate of the parents upon the death of the survivor of them). Whatever the situation, it is imperative for the trustees and their advisors to turn their minds to the tax issues that may result from a variation of the trust terms.
C. ETHICAL ISSUES
As always, it is important for an advisor to consider whether any undue influence exists where a variation in trust terms is considered. Where a variation results in a material change in beneficial entitlements, it will be important to determine whether those with the power are acting solely under their own wishes, or whether someone else is encouraging or forcing the change. This is particularly important where younger generations are acting as the intermediary between their older parents and the advisors.
The scope for reversing and rectifying trustee decisions is arguably not that broad. While the Courts in BC have the jurisdiction to rescind trustee decisions and vary trust terms, they will most often elect to do so only in certain limited circumstances, where the facts of the case make it just and equitable to do so. It will be interesting to see how Re Pallen is considered in the future as the law in this area continues to evolve.
 Hastings-Bass  1 Ch. 25 (C.A.).
 Pitt v. Holt  EWHC 45 (Ch); 2011 EWCA Civ 197 (CA);  UKSC 26 (SC).
 Futter v. Futter  EWHC 449 (Ch); 2011 EWCA Civ 197 (CA);  UKSC 26 (SC).
 Supra note 1 at 41.
 Mettoy Pension Trustees Ltd. v. Evans and others  1 WLR 1587.
 Ibid. at 1621.
 Sieff v. Fox,  EWHC 1312 (Ch).
 Pitt,  UKSC 26 at paragraph 122.
 2014 BCSC 305.
 2011 TCC 212, affirmed 2012 FCA 207.
 See note 9 at paragraph 34.
 And may also, of course, include notifying the original drafter that he or she has made such an error, and suggesting that they may want to contact their insurer.
 41 E.R. 482
 R.S.B.C. 1996, c. 463.
 Snell’s Equity, Sweet & Maxwell, 30th edition, at p. 693.
 (2004), 46 B.L.R. (3d) 283 (S.C.).
 2012 BCSC 132.