Author: Ian Hull
As 2020 begins to wind down and mercifully come to an end, we are reminded of new rules coming into force for administrators of trusts beginning January 1, 2021.
As part of its 2018 federal budget, the Government of Canada introduced new tax return filing and information reporting requirements for trusts. Currently, a trust must file a T3 return if it has tax payable on its assets, or income or capital is distributed to beneficiaries.
Going forward, the Canada Revenue Agency (CRA) will begin to collect detailed information on the identity of all trustees, beneficiaries and settlors, as well as any person who has the ability to apply control over trustee decisions about appointment of income or capital. This information includes the name, address, date of birth, jurisdiction of residence, and taxpayer identification number (“TIN”). This information must now be filed with a T3 return.
For some trusts, a T3 return may never have been required before, for others, these new reporting requirements could prove very onerous. Trustees and administrators are encouraged to plan ahead and seek the advice of a tax professional as non-compliance carries significant penalties of around $2,500.00 on top of any existing penalties.
When it comes to estate planning, the new rules will affect most express trusts, and settlors preparing their testamentary documents should also seek the advice of a planning professional. Especially as it is yet unknown how the new rules may affect the use of secret and semi-secret trusts.
Oosterhoff on Trusts (9th ed.) reminds us that with a secret trust, “the Will neither discloses the existence of the trustee, nor the beneficiary,” and under a “semi-secret trust, the Will discloses the existence of the trustee, but not the beneficiary” (p.830).
We are expecting the CRA to issue clarification and guidance in the coming months as the new rules yield a host of as yet unanswered questions, namely: By seeking out personal details from beneficiaries, does a trustee then risk breaching the terms of a trust that was settled on terms meant to stay private? Is there a risk of increased non-reporting through the use of secret trusts? And what happens if the required information is not available, or withheld?
As our managing partner, Suzana Popovic-Montag told the Law Times in February of this year, “There has been a historical lack of transparency in the administration of trusts and estates, and governments are now taking an interest in the use of these tools in the transfer of assets for taxation purposes.” Beyond the questions raised above, Suzana goes on to say that we should “‘expect concern surrounding privacy issues’ any time there are new or enhanced disclosure obligations.”
The federal government is looking to crack down on aggressive tax avoidance, and beginning January 1, 2021, a new era of disclosure will begin. While the full picture is not yet completely clear, we will keep you posted.
Thanks for reading!
Ian Hull and Daniel Enright
 The TIN includes a social insurance number for individuals, a business number for corporations and partnerships, or an 8 digit trust account number issued by CRA to trusts.
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
Thanks for reading.
Ian Hull and Daniel Enright
The importance of regularly updating your will cannot be understated. A prudent individual should review their will upon significant life changes. An article on Forbes suggests that one’s estate plan should be reassessed at least every five years. A change in finances, the law or personal circumstances, such as marriage, divorce or a change in relationships, should prompt a review even sooner.
Covid-19 sparked a change in many people’s daily lives and personal attitudes. While death is not something pleasant to consider, Covid-19 has made many people more conscious of their own vulnerability and mortality. There is a psychological theory that describes this notion – Terror Management Theory. This phenomenon examines how people respond when death is made salient to them. In their book, The Worm at the Core, Sheldon Solomon and his colleagues explain how the Terror Management Theory begins with the notion that human beings have an innate need to survive, like other living organisms. However, while other organisms lack the intellectual ability to understand their impermanence, human beings do not. Perhaps as a result of heightened death awareness spurred by Covid-19, estate planners were flooded by clients rushing to update (or create) their estate plans at the beginning of the pandemic.
As students in the GTA return to school, we are again seeing a steady and concerning increase in Covid-19 cases. Ontario Education Minister, Stephen Lecce, expressed concerns of a possible second wave of the virus in conjunction with flu season. It is important for individuals to again reconsider whether their personal circumstances have changed in a significant way and to review their estate plans to ensure they are sufficient and up to date. It is crucial that Canadians do not succumb to “pandemic fatigue.”
Thanks for reading!
Ian Hull & Tori Joseph
September has brought some news out of the world of James Bond.
Labour Day saw the release of the new trailer for No Time To Die, the 25th installment of the blockbuster spy franchise, and fifth (and final) for current 007 Daniel Craig. While Craig is exiting, and there is no word yet as to who will don the most famous code name of all time, the newest trailer sees the return of familiar characters, friend and foe alike: Ernst Blofeld, head of the notorious terrorist organization, SPECTRE, CIA Agent Felix Leiter and of course, Ms. Moneypenny.
As for those looking for a cottage or a second home, September also brought the news that Sean Connery, the most famous 007 of them all, has placed his house in Cote d’Azur, France on the market for a cool €30 Million.
Truly a house built for a super spy on the banks of the Mediterranean in Cap de Nice, Connery’s 1.24 acre Belle Epoch-inspired abode boasts a saltwater pool, indoor gym and pool, and two guest houses. While Sir Sean may be leaving town, Elton John and Tina Turner have also owned homes nearby, and Monaco is just a 30 minute drive away.
One is encouraged to be mindful of the tax liabilities in France, however, as the Taxe Foncière is based on the cadastral income of a property, while the Taxe d’Habitation is traditionally only paid by residents. While the TH has been the subject of much political attention for primary residences, if the house is a second home, authorities can levy a surcharge of as much as 60% if a furnished home is left vacant for more than 120 days per year. Finally, France has a wealth tax that applies to residents and non-residents alike if they have real property assets of €1.3 million or greater. A significant tax risk for cottaging Canadians to be sure.
If a Canadian is considering a property purchase on the Riveria, it’s worth investigating the consequences for an estate plan. While Canada has no tax on testamentary gifts, one would be wise to check with the jurisdiction in which a prospective beneficiary lives. In the United States, for example, citizens are taxed on their worldwide income, so a gift of this size to an American relative may yield a tax burden. Finally, while personal property is governed by the jurisdiction in which the testator lives, real property is governed by the jurisdiction in which it’s located. So France will decide what taxes will apply to the property itself.
Thanks for reading!
Ian Hull and Daniel Enright
The Henson Trust, and planning for individuals receiving ODSP, has been thoroughly discussed on this Blog in the past, but today we look at the potential necessity for multiple Henson Trusts.
In July of 2019, Stuart Clark discussed the concept of a Henson Trust and the risk to provincial entitlements if “a testator does not take steps prior to their death to ensure that their estate plan includes tools such as a Henson Trust that would allow the beneficiary to receive the inheritance as well as continue to receive their benefits from ODSP.”
A 2019 decision by the BC Court of Appeal upheld a lower court’s finding that a distribution of estate assets to a trust that was settled by the Deceased during his lifetime was inoperable. Such a distribution is known as a pour-over clause as the assets are said to “pour over” into the separate trust.
In Ontario, the fundamental issue with the use of pour-over clauses is that by allowing a distribution from a Will to a separate trust (that can be easily altered after the Will is executed), it may not conform to the strict formal requirements otherwise required for a Will to be altered. The formalities required to alter or amend a trust are much lower than those required to create a Will.
Which brings us to today’s topic: Families may need multiple Henson Trusts.
A family-owned business, for example, may yield assets for both uncles and aunts, as well as for the parent of an individual who receives provincial assistance. Because of the issues with pour-over clauses, it becomes extremely difficult for a gift to vest in a beneficiary and then be subsumed by a current or future Henson Trust. As a result, an outright gift to a nephew may jeopardize his provincial entitlements despite the existence of a separate Henson Trust.
Further, while a Will can be changed or altered at anytime prior to death, it is never a good idea to rely on other people to provide for a particular family member. However, because multiple Henson Trusts can feel cumbersome, discussing plans with family members is always a good idea when appointing the same trustee is a possibility.
Depending on the family and circumstances, talking with family members about estate plans can be challenging, but sharing ideas about Henson Trusts can potentially ensure that no one loses access to ODSP.
Thanks for reading.
Ian Hull and Daniel Enright
There are relatively few circumstances in which a court will stifle, rather than vindicate, a deceased person’s testamentary intentions. If a testator wished to give all of his or her assets to a charity for cats, but did not leave adequate funds for his or her dependants, the testator’s will may be varied in order to support the dependants. When a deceased person assigned insurance policy proceeds to his spouse, but previously he had promised an ex-spouse that if she paid the insurance premiums, the proceeds would go to her, the courts interceded, in spite of the designation to the spouse, and awarded the proceeds to the ex-spouse on the basis of unjust enrichment.
In this blog we shall discuss Calmusky v. Calmusky, a recent decision which may have added another context in which courts can upset a deceased person’s testamentary intentions.
Gary and Randy were the sons of Henry, the deceased. In Henry’s last will, he left the residue of his estate to one of Randy’s children and his, Henry’s, nephew. Upon Henry’s death, his interests in bank accounts jointly held between he and Gary were transferred to Gary by right of survivorship. He also made Gary a joint holder of his Registered Income Fund (RIF).
Part of the court’s decision was conventional: since the account transfers were gratuitous transfers between a parent and an adult child, according to Pecore, there is a presumption of resulting trust (with the transferee, Gary, holding the accounts in trust for Henry’s estate) that must be rebutted, with evidence of a donative intent on behalf of the parent, before the transferee can retain the assets. Since Gary could not show donative intent, the bank account funds were to revert to Henry’s estate. And then came the unconventional: the court determined that the rule in Pecore applied to the RIF:
“I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation.”
By stretching the rule in Pecore to this new context, the court may have burst open floodgates which protect beneficiaries of RIFs, pension plans, life insurance policies, and more. And as was observed in our recent blog on Calmusky, there is “legislation that uniquely applies to beneficiary designations (e.g. the Income Tax Act, the Succession Law Reform Act or the Insurance Act)” that appears to conflict with the decision.
And then there is the policy dilemma arising from Calmusky: if the designation is not good enough, what is? Should an affidavit be executed to corroborate the designation, or should a testator put a provision in his or her will that crystallizes existing beneficiary designations? The trouble with the latter option, which ostensibly seems to be the surest option, is that the subject matter of the beneficiary designation may, since it is mentioned in the will, have to be listed in the probate application and the Estate Information Return – leading to heightened expenses.
The last time that estate solicitors were put in such a dubious position, arguably, was when the court in Re Milne ruled that a will is a trust, thereby rendering “basket clauses”, a common estate solicitor’s tool, precarious or even invalid. Now, while Calmusky stands, there is no clear best practice with respect to bullet-proofing beneficiary designations. And sadly, Gary, who prior to Calmusky would have received the RIF funds, is left disinherited; and Henry, who prior to Calmusky would have had reason to trust in the RIF beneficiary designation, may have had his testamentary intentions frustrated.
Thanks for reading – have a great day,
Ian Hull and Devin McMurtry
The recent case of Tilley v Herley 2019 ONSC 5405 serves as a reminder that courts will not approve an interim distribution of the funds in an estate if there is the possibility of new testamentary documents coming to light.
In this case, the deceased had been estranged from her four children for much of their lives; however, she reconciled with one of her children, Roxanne, before her death in 2019. Roxanne was appointed as sole executrix and trustee and was named as the only beneficiary of the entire estate in the most recent will which was executed in 2008. Prior to her death, the deceased transferred the main asset of the estate, a residence in Mississauga, to herself and Roxanne as joint tenants. When she died, the residence passed to Roxanne by right of survivorship.
Two of the other children brought a challenge to the will on the basis that their mother lacked testamentary capacity, that she was unduly influenced by the Respondent Roxanne, and that the will was executed under suspicious circumstances. They also sought a declaration that the residence should be subject to the presumption of resulting trust and should not pass to Roxanne by right of survivorship. Roxanne had already sold the residence and both parties agreed that the proceeds of the sale would be held in trust pending litigation. Roxanne then brought a motion seeking an interim distribution of 25% of the funds held in trust. The rationale behind this was that even if the other siblings’ will challenge was successful and Roxanne lost at trial, she would still receive 25% of the estate as it would be divided up in equal parts amongst the four children.
The case turned on the fact that even though no will prior to 2008 had been located, there was evidence that an earlier will may have existed. This made it impossible to determine that the Respondent’s interest in the estate would be a minimum of 25% and the court found that making an interim distribution of the proceeds would be “premature and inappropriate”. Another relevant factor was that at this early stage in the litigation, there had not been an accounting with respect to the entire estate, including debts and liabilities, as well as future expenses including litigation costs, making it impossible to determine the value of 25% of the estate.
The court dismissed the motion, as there was a possibility that the deceased may have made an earlier will and until this will could be located or its existence could be discounted, it was impossible to know the extent of Roxanne’s entitlement should the will challenge be successful. The court also noted that it was conceivable that none of the deceased’s children would be beneficiaries under a previous will if the 2008 will were to be declared invalid by the court. This case demonstrates that applying for an interim distribution of estate funds can be ill-advised and will likely fail if there is evidence indicating the potential existence of an undiscovered prior will. This would make it impossible for the court to determine the minimum amount that either party may receive if the contested will is declared invalid.
Thanks for reading,
Ian Hull and Sean Hess
Few would have the audacity (or the poor judgment) to perform surgery or fly an airplane without requisite training. The hero of The Simpsons, Homer, (a sad example of his namesake), can often be seen, rather comically, making errors on the job at the Springfield nuclear power plant – and yet there is nothing funny, in real life, about an untrained nuclear technician staring down a crisis. Our world is no longer one in which most people provide all their wants for themselves; instead, trades are highly specialized. Lawyers, for instance, will not typically build their own houses – most, indeed, would not know how to build their own tables. There is temptation, however, in self-sufficiency: one may save money in cutting one’s own hair and gain pride in cooking one’s own meals; and in case of failure, one may always pay one’s expert barber to salvage one’s botched haircut and scramble to one’s favourite restaurant to relieve one’s palate.
Whereas the consequences of conducting surgery or flying an airplane without training are readily apparent to the imagination, the risks associated with self-representation in court can be deceiving. Some think they are – or truly are – qualified to argue their own cases if they do some private research, study the procedures and access free legal resources at their disposal. They may find the endeavour exciting, a personal rite of passage or a challenge from which they may grow. It is a sad truth, as well, that many self-represented litigants simply do not have the financial means to afford legal counsel. Options available to litigants of more modest means – such as legal aid, pro bono and hiring a lawyer on contingency – are often imperfect (and, alas, sometimes unattainable), but they may be preferable to going into the legal fray alone. In any case, Bristol v. Bristol,  O.N.S.C. 1684 (“Bristol”), is a stirring instance of what may go wrong with respect to legal self-representation.
The facts in Bristol are as follows: the matriarch of the Bristol family, Elizabeth, passed away on December 6, 2016, survived by ten children; in 2002, she executed a will in which she distributed her estate equally amongst the ten children; in 2004, she left another will by which she disinherited nine of the children and left her entire estate to Berry, the tenth child. Her stated purpose for disinheriting the nine others was that she had assisted them sufficiently throughout their lives.
On December 30, 2016, one of the disinherited children, Stephanie, filed a Notice of Objection, on behalf of herself and four of her siblings, alleging incapacity and undue influence with respect to the latter will. Berry filed his Notice to Objector on July 18, 2017, and then Stephanie filed a Notice of Appearance on July 25, 2017. After almost two years, during which time Stephanie was allegedly waiting for Berry to “take a step in the probate proceeding”, Stephanie brought a Motion for Directions. This was on April 23, 2019. The Court indicated that she should issue an Application within 45 days but without prejudice to Berry bringing a motion to dismiss on the grounds that the Application was statute-barred, for sections 4 and 5 of the Limitations Act prohibit a proceeding from commencing more than two years after the day on which the claim was discovered.
In its decision, the Court found that the steps Stephanie had taken, namely filing the Notice of Objection and Notice of Appearance, did not commence a proceeding; the former is merely a “caveat” or “caution”, not a proceeding, and the latter does not institute proceedings. She needed to issue an Application. It was next determined that the date of discoverability was either December 6, 2016 (the date of death) or at the latest December 30, 2016 (the date of the Notice of Objection), and that, therefore, the two-year limitation period had expired. As a last resort, Stephanie argued that she was seeking declaratory relief and that no limitation period thus barred her. The Court decreed that “will challenges cannot be framed as declaratory relief”.
There was sympathy for Stephanie’s position, but the Court declined to make an exception for her merely because she was self-represented:
“The Applicant insisted that because she was self-represented and because the Respondent had taken no steps, she was forced to bring a Motion for Directions in April 2019. It was only on the motion date that she learned that she was required to actually issue an Application. While all of this is unfortunate, it does not permit the Applicant to escape the presumption in ss. 4 and 5 of the Act.”
In consideration of Stephanie’s position, however, the Court opted not to order costs for Berry, to which he would have been entitled “in normal circumstances”.
In conclusion, we may finish with three observations. Firstly, as Berry won the case, the Court may have awarded costs against Stephanie. As was mentioned in the decision, estates litigants may have costs awarded against themselves personally – the estate no longer by necessity absorbs the legal costs for all parties. Secondly, had Stephanie hired counsel, it is likely that this procedural error would have been avoided and the will challenge determined on its merits. Engaging counsel would have perhaps carried greater financial risks, but the chance of gain (winning the case, settling) would have also sweetened the prospect. Lastly, Bristol is another lesson that litigants, both trained and untrained, must beware of time, and the limitations it summons, for it can be a stern and unconquerable foe.
Ian Hull & Devin McMurtry
In many estates disputes, litigants find themselves in the position of not having as much evidence as they would like, and regretting that they had not gathered more. This occurs because litigation is typically unplanned, with many disagreements suddenly fanning from small flames to infernos. Parties, as well, tend not to prepare for the worst at the outset of their dispute; they hope for reconciliation and do not immediately heed their gloomy forebodings. And, as estates conflicts mostly arise from family quarrels, it is commonplace for parties not to collect receipts, locate witness, assemble affidavits, and secure other evidence until it is too late – when the key witness has died, the receipts are gone, and other useful evidence is buried in the past.
In such cases of scant evidence, parties’ credibility looms large. It is necessary, then, for counsel to skillfully establish their own parties’ credibility while undermining that of their opposing witnesses. In so doing, before counsel contradicts an opposing witness’ testimony, counsel must put the impugning evidence to the witness while the witness is still on the stand. This is known as the rule in Browne v. Dunn, in which case Lord Herschell explained the rule’s purpose:
“My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practices in the conduct of a case but is essential to fair play and fair dealing with witnesses.”
The rule is by no means absolute, for its application depends on the judge’s discretion. With this in view, some counsel deliberately ignore it, concluding that the strategic advantages of evidentiary ambushes outmatch the drawbacks. Consider the damage caused if, at the end of a proceeding, counsel prompts the final witness to let slip several calumnies about another witness who has already been cross-examined; while this would be a breach of the rule in Browne v. Dunn, it might prove worthwhile insofar as it could taint the witness’ credibility.
The consequences of breaching Browne v. Dunn can be impactful. In one Alberta estates decision, the Court of Queen’s Bench found that counsel’s violation of the rule “diminishe[d] the weight of their evidence”. If it is found that counsel has deliberately breached the rule to cause prejudice, the court may prohibit counsel “from the presentation of its case”. Another remedy is for the judge to allow counsel to recall his or her witness to confront the subject matter of the Browne v. Dunn breaches. Recalling a witness and having the final say can provide a strong tactical advantage – “he laughs best who laughs last”, as the idiom goes.
Thank you for reading,
Ian Hull & Devin McMurtry
The case of Gefen v Gaertner 2019 ONSC 6015 revived the doctrine of unconscionable procurement, which had been dormant since the early 1900s, as an equitable principle capable of setting aside an inter vivos gift. The principle behind the doctrine is that it is unconscionable for someone to be instrumental in procuring a gift to themselves from a donor who does not fully appreciate his or her actions.
Facts of the Case
Henia Gefen, along with her late husband, Elias, had accumulated significant wealth through investing in real estate. The couple were married for 65 years and had three children: Harvey, Harry, and Yehuda. Unfortunately, relationships deteriorated in the family after Elias’s death, with Henia and Harvey becoming at odds with Harry and Yehuda.
In a series of inter vivos gifts, more than $25M in assets was transferred from Henia to Harvey after Elias’s passing. This was contested by Harry and Yehuda, who relied on the doctrine of unconscionable procurement. The court determined that the onus was on the party attacking the transfer (Harry and Yehuda) to prove, on the balance of probabilities, that a presumption of unconscionable procurement applies. This can be done by satisfying the following two requirements:
(1) A significant benefit has been obtained by the procurer; and
(2) There was active involvement on the part of that person in procuring or arranging the transfer from the maker of the transfer.
If these two requirements are satisfied on the balance of probabilities, the court then presumes that the transfers were prima facie unconscionable, and the onus shifts onto the other party in receipt of the gift to prove that the transfers were not unconscionable.
Specifically, the other party must prove the 3rd element, which is that:
(3) The gift was a voluntary, deliberate, well-understood act of the donor, and that the donor did appreciate its effect, nature, and consequence.
(See John E.S. Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters Canada, 2019)
This case has much wider significance in Ontario law. It continues to be the law that a significant benefit procured by the active involvement of the recipient may be set aside if the recipient fails to prove that the donor fully appreciated the nature, effect, and consequence of their gift. If this cannot be proved, the gift is deemed to have been unconscionably procured. The dormant doctrine of unconscionable procurement was awakened in Gefen v Gaertner, and an additional tool to challenge inter vivos gifts has been now revamped and reintroduced into the legal system.
Thanks for reading!
Ian Hull and Sean Hess