The History of the Henson Trust (3.5 min)

Kenneth Pope speaks about the interesting history of the Henson trusts and on-going discussions today regarding certain aspects of it. The Henson trusts was made for Leonard Henson in Guelph, Ontario to be passed to his daughter upon his death after a long battle with the Supreme Court of Ontario.

Web:
https://kpopelaw.com/

Email:
kpope@kpopeplanning.com

Phone:
1-866-536-7673

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Video Transcript:

The short history of the Henson Trust is very interesting. It was done for Mr. Henson by a lawyer in Guelph named George Gates, and unfortunately George long retired, died in June of 2016. But it was done for him, and Mr. Henson died in 85. He left $82,000 in the form of a now called Henson Trust for his daughter Audrey and the Ministry decided that this asset should disqualify her from benefits. So the matter was taken to a social benefit tribunal appeal, the hearing officer decided that given the wording of the trust having absolute and unfettered discretion on the part of the trustee and an on vesting provision on the part of the asset, which simply did not belong to Audrey, that the benefit should not be cut off. So the ministry disagreed, they took it to court in 1987, the judge agreed with the tribunal officer that Audrey should not lose benefits. The ministry Sought leave to appeal to the court of appeal on basis of fact of error in law and the Court of Appeal decided that they would not grant this application, meaning that they affirmed the trial decision, and since then in Ontario and by common law persuasion in all the other provinces and even now in Quebec, Henson Trust is effective in protecting assets.

Now I'm just now in the process, we have finished an appeal tribunal decision recently given to us where we're contesting the disbursement of money as offsetting ODSP because the initial case didn't determine disbursements only the asset. Seems unfair to me, unreasonable, inequitable, that if during life time the parents can spend money for the child, buy them clothes buy them food take them on trips, that the inherited amount in the Henson Trust managed by a trustee with absolute discretion that disbursements from the Trust for the benefit of the child as the ministry says Should offset ODSP above the standard 6000 over 12 months rule. I disagree with respect your honor.

So we're now retained to take this to a court to find out what a judge thinks. This retainer will have to be reconfirmed we've just received the decision. But I have a client who would like to change the world in this small way, and I'd be very happy to do it, I'm optimistic. Now with respect to the back story, George Gates also had a child with special needs, Teresa, and he lived until he passed on in 2016 with his wife and her. His wife pre-deceased him, Teresa then had to go into supported living because he couldn't support her himself. He was in his late 80s and George got his precedent from a fellow that he met at Osgoode hall at a continuing education program years before who also had a child with disabilities, and so no one had any idea whether it would actually work. It's just that Mr. Henson died first, and it does work. I look forward to the decision on the disbursement issue as well, I'll be happy to keep you informed.

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