A Canadian Trust Amendment is a legal document that modifies specific provisions of an existing inter vivos (living) trust without revoking the entire trust agreement. In Canada, trusts are governed by a combination of provincial Trustee Acts, common law principles (or the Civil Code of Quebec in that province), and the federal Income Tax Act (R.S.C. 1985, c. 1, 5th Supp.). A trust amendment allows the Settlor to make changes to beneficiary designations, distribution provisions, trustee appointments, trustee powers, and administrative terms while preserving the continuity and tax status of the original trust.

Under provincial Trustee Acts such as the Ontario Trustee Act (R.S.O. 1990, c. T.23) and the BC Trustee Act (RSBC 1996, c. 464), trustees have statutory fiduciary duties of care, loyalty, and impartiality. When amending a trust, the Settlor must ensure that the amendment complies with both the express terms of the original trust agreement (which must reserve the power of amendment) and the applicable provincial legislation. In Quebec, trusts are governed by articles 1260-1370 of the Civil Code of Quebec, which distinguish between personal trusts, private trusts, and social trusts, each with different rules regarding amendment and variation.

From a federal tax perspective, the Canada Revenue Agency (CRA) treats a trust as a separate taxpayer under Income Tax Act s. 104. Trust amendments that are so fundamental as to alter the essential nature of the trust may constitute a resettlement, creating a new trust for tax purposes. This has significant implications for the 21-year deemed disposition rule under s. 104(4), as a resettlement resets the 21-year cycle. The CRA’s administrative position distinguishes between routine amendments (which do not create a new trust) and fundamental changes to the settlor, purpose, or character of the trust (which may trigger resettlement).

A trust amendment is needed whenever the Settlor wishes to modify the terms of an existing revocable inter vivos trust without revoking and replacing the entire trust agreement. Common situations include the birth or adoption of a new child or grandchild who should be added as a beneficiary, changes in family circumstances such as marriage, divorce, or the death of a beneficiary, and the need to update distribution provisions to reflect the Settlor’s current wishes.

Trust amendments are also necessary when the current Trustee needs to be replaced due to death, incapacity, resignation, or a breakdown in the relationship with the Settlor or beneficiaries. The amendment can appoint a new Trustee or add a co-Trustee while preserving the continuity of the trust. Changes to the Trustee’s powers may be needed as tax and trust law evolves, for example, to grant the Trustee authority to make elections under the Income Tax Act or to manage digital assets.

As the 21-year deemed disposition anniversary approaches under ITA s. 104(4), a trust amendment may be used to restructure the trust, distribute capital to beneficiaries, or create sub-trusts to manage the tax liability. Amendments may also be needed to change the governing province if the Settlor or Trustee relocates, or to update spendthrift and protective provisions to reflect current case law. In all cases, the Settlor should consult with a qualified estate planning lawyer and tax advisor to ensure the amendment does not constitute a resettlement that triggers adverse tax consequences.

A valid Canadian Trust Amendment must clearly identify the original trust by name and date of creation, the Settlor with full legal name and current address, and the Trustee. The amendment must reference the specific provisions of the original trust agreement being modified and set out the new language to replace the existing terms. It should include a recital confirming that the original trust agreement reserves the power of amendment to the Settlor and that the Settlor has the mental capacity to execute the amendment.

The amendment should specify which type of changes are being made: beneficiary additions or removals, distribution changes, trustee replacements, changes to trustee powers, modifications to spendthrift provisions, or changes to administrative terms. Each change should reference the specific article and section of the original trust being amended. A ratification clause should confirm that all other provisions of the original trust agreement (and any prior amendments) remain in full force and effect.

Tax provisions should address the Trustee’s authority to make elections under the Income Tax Act (Canada), including elections under ss. 70(6) (spousal rollover), 104(4) (21-year deemed disposition), 104(6) (income deductions for distributions), and 104(13.1) (preferred beneficiary election). The amendment should specify the governing province and confirm compliance with the applicable provincial Trustee Act. It must be signed by the Settlor and the Trustee, witnessed by two independent adults, and copies should be distributed to the Trustee, all beneficiaries, and the trust’s professional advisors.