Kira Domratchev, Partner, Gowling WLG (Canada) LLP

Many of us are familiar with the concept of a Henson Trust, as it comes across our desks fairly frequently, both in the context of litigation and planning. A Henson Trust is a trust where the trustee is given an absolute and unfettered discretion such that a beneficiary could not compel the trustee to make payments to them. For that reason, a beneficiary’s interest in a Henson Trust is, therefore, nil.

In an interesting argument before the British Columbia Supreme Court,[1] Kathryn Elizabeth Damgaard, sought to vary the terms of her late mother’s Will on the basis that the Will improperly failed to provide for her share of the residue to be invested in a Henson Trust.[2]

Kathryn was one of the three surviving adult children of the testator, Elizabeth Jean Damgaard. The testator’s Will provided for modest bequests to her two grandchildren, with the remainder of her estate divided equally between her adult children, including Kathryn. Each share of the estate was significant – more than $1.8 million.

Kathryn is a recipient of disability benefits from the provincial government (similar to the Ontario Disability Support Payments) and resides in social housing. Accordingly, Kathryn sought to vary the terms of her mother’s Will to ensure that she does not lose her entitlement to disability benefits, and her housing, as a result of such a significant inheritance.

Kathryn relied on section 60 of the Wills, Estates and Succession Act which provides as follows:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

Kathryn argued that by failing to put her interest into a Henson Trust to preserve her benefits, her late mother did not make adequate provision for her maintenance and support.

The Court confirmed that it has the authority to create a trust in the context of a wills variation claim. In applying the objective test for “adequate provision for the proper maintenance and support,” the Court considered whether the testator breached her moral obligation to Kathryn, which is evaluated at the time of death or the time of last testamentary capacity, being the last opportunity she would have had to make changes to her will.

The Court dismissed Kathryn’s application, for a number of reasons, including:

• Kathryn received the same interest in the testator’s estate, as her siblings. In other words, it is not the case that Kathryn was disinherited or received less than the other beneficiaries.
• Kathryn’s inheritance is significant.
• The evidence regarding Kathryn’s expenses beyond what is currently covered through her disability benefits was sparse. For instance, it was not clear from her evidence that she would necessarily lose her housing if she received her inheritance directly.
• The evidence surrounding the potential negative effect of losing her housing, if indeed that even happened, was also limited, beyond the fact Kathryn liked her current living arrangements.

What is interesting about the Court’s conclusion is that Kathryn was given leave to re-apply (probably with better evidence). We will have to wait and see if there is a further update in this matter in the future and if so, whether Kathryn is ultimately successful in having her mother’s Will varied.

Thank you for reading.

[1] Damgaard v Damgaard Estate, 2025 BCSC 208.

[2] While there is no similar line of cases in Ontario vis-à-vis Henson trusts, I still thought the case was interesting to consider, in the context of the Court’s analysis of a support application.