If there is a fraud on a power, and the trustees attempted to use a power they did not possess, is this court going to rescue the trustees?
British Columbia, Canada
The following excerpt is from TLC The Land Conservancy of British Columbia (Re), 2014 BCSC 97 (CanLII):
If there is a fraud on a power and the trustees attempted to use a power they did not possess, then this court must not come to the rescue “by treating their action as if they had been engaged in exercising a quite different power that they did actually possess”: Kain v. Hutton, [2008] NZSC 61 at para. 35. As Tipping J. stated in his concurring judgment, the donee “is acting pursuant to a mandate granted by the donor of the power and must stay within that mandate”: Kain at para. 46.
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