Entire section
44. General power of the Court in respect of orders
46. Power to set aside a transfer or disposition of property exercised by fiduciary power

45. Power to set aside a transfer or disposition of property due to mistake

(1) In this section:

  1. (a) ‘person exercising a power’ means a person who exercises a power to transfer or make other disposition of property to a Foundation on behalf of a Founder and a person who exercises a power over a Foundation or property of a Foundation; and
  2. (b) ‘mistake’ includes (but is not limited to):
  3. (i) a mistake as to:

(A) the effect of;

(B) any consequences of; or

(C) any of the advantages to be gained by, a transfer or other disposition of property to a Foundation, or the exercise of a power over or in relation to a Foundation or property of a Foundation;

(ii) a mistake as to a fact existing either before or at the time of, a transfer or other disposition of property to a Foundation, or the exercise of a power over or in relation to a Foundation or property of a Foundation; or

(iii) a mistake of law including a law of a foreign jurisdiction; and

  1. (c) references to a transfer or other disposition of property to a Foundation do not include a testamentary disposition.

(2) The Court may on the application of any person specified in subsection 47(1), and in the circumstances set out in subsection (3), declare that a transfer or other disposition of property to a Foundation:

  1. (a) by a Founder or Contributor acting in person (whether alone or with any other Founder or Contributor); or
  2. (b) through or by reason of a person exercising a power or the exercise of a power by a person over the Foundation or property of a Foundation is voidable and:
  3. (i) has such effect as the Court may determine; or

(ii) is of no effect from the time of its exercise.

(3) The circumstances are where a Founder, Contributor or person exercising a power:

  1. (a) made a mistake in relation to the transfer or other disposition of property to a Foundation; and
  2. (b) would not have made that transfer or other disposition but for that mistake; and the mistake is of so serious a character as to render it just for the Court to make a declaration under this section.