Under section 86 of the Trustee Act, and a Court’s inherent jurisdiction, trustees in British Columbia may seek the court’s opinion, advice, or direction on legal questions relating to the management and administration of a trust. However, there are limits. Courts will not permit these avenues to be used as a vehicle to construct, re-write or circumvent the terms of a trust.

That limit was recently articulated in Re: The Jack Leshgold Family (2009) Trust, 2026 BCSC 388 (“Leshgold Trust”), where the Court dismissed a petition framed in administrative terms, but which in substance sought to vary the fundamental terms of a trust.

Full disclosure: my colleague, Betony Rowland, and I acted for the respondent, who successfully opposed the petition.

Background

Leshgold Trust involved a family trust (the “Trust”) settled in 2009 by Leiba Leshgold. She and her husband, Jack Leshgold, were successful property developers in the Lower Mainland of B.C.. The Trust held significant interests in two development companies with real estate assets valued at over $1 billion.

After Ms. Leshgold’s death in 2013, Jack acted as sole trustee until his death in 2024.

On his death, the Trust provided for a three-trustee structure operating by majority:

• one appointed by their daughter, Susan;
• one appointed by their son, Robert; and
• one independent trustee.

The independent trustee was to be appointed by a majority of Susan, Robert, and the most senior non-family officer of Reliance Properties Ltd. (one of the Trust’s principal assets).

Susan became concerned that the Reliance officer—who held the tie-breaking role in appointing the third trustee —might favour Robert. She proposed amending the Trust to replace that mechanism with an experienced independent lawyer acting as an “expert” appointer.

Robert took the position that the Trust permitted amendments only to “administrative provisions,” and that the proposed change was not administrative.

Susan brought a petition under s. 86 of the Trustee Act (and alternatively, the Court’s inherent jurisdiction), asking whether the definitions of “Independent Trustee Appointer” and “Independent Designated Trustee” in the Trust were “administrative provisions” capable of amendment—and, if so, to implement her proposal.

Robert and his sons, as beneficiaries, opposed. They argued the Court lacked jurisdiction to answer what were, in substance, questions of trust interpretation and variation.

The Law: Limits of Section 86 and Inherent Jurisdiction

Section 86 permits a trustee to seek the Court’s opinion, advice, or direction on questions respecting the management or administration of trust property. Similarly, the Court’s inherent jurisdiction allows it to guide trustees on administrative matters and their obligations.

Section 86, and the jurisdiction of the court, has its limits, even on matters that are truly related to administration and management; I’ve written previously on this topic – here.

However, it is a clear line that Courts will not use s. 86 – or inherent jurisdiction – to:

• engage in the ‘construction’ of a trust instrument or to amend its operative terms; or
• Determine issues affect the rights of beneficiaries under a trust to trust property.

This relief is intended to assist trustees with what the case law describes as “little matters of discretion” —not to resolve disputes about the structure or fundamental terms of a trust.

Application

The Court agreed with the Respondents in Leshgold Trust and held that the petition fell outside both s. 86 and the Court’s inherent jurisdiction. On a jurisdictional basis the petition was dismissed.  Despite its framing, the petition did not raise administrative questions. In substance, Susan sought to vary the Trust’s terms – without beneficiary consent –  by recasting core provisions as “administrative.”  The questions asked the court to engage in the construction of the trust instrument, and went to the fundamental mechanism of trustee appointment and therefore Settlor intention.

Although unnecessary to the result, the Court went on to address the merits in the alternative.  The Court concluded it would have answered both questions in the negative. The definitions ‘Independent Trustee Appointer’ and ‘Independent Designated Trustee’ in the Trust were not “administrative provisions” capable of amendment by the trustees.

Reading the Trust as a whole, the Court found the Settlor did not intend to permit the amendment of the mechanism by which the independent trustee was appointed. To allow the proposed changes would be to “circumvent and frustrate” the clear intentions of the Settlor.

Key Takeaways

• Section 86 is not a workaround for trust variation. Courts will not entertain applications framed as administrative where the substance is interpretation or alteration of the trust instrument.
• The jurisdiction of the court in this area is confined to answering true legal questions regarding the management and administration of trust property (or assisting trustees with ‘momentous decisions’).