Author: Ian Hull

10 Nov

The Administration of an Estate with Firearms

Ian Hull Executors and Trustees, General Interest 0 Comments

Recently at the Practice Gems: Probate Essentials 2014 program held by the Law Society, Jordan Atin of Hull & Hull LLP and Michael Press of the Toronto Police Service presented a paper on firearms as estate assets.  In their presentation, Mr. Atin and Mr. Press outlined the unique challenges faced by Estate Trustees when firearms are amongst the Deceased’s assets.

Firearm regulations in Canada, namely the Firearms Act and Criminal Code, generally require that anyone in possession of, or intending to acquire a firearm, hold a licence permitting that individual’s possession or acquisition.

Specifically, section 91(1) of the Criminal Code states that  “…every person who possesses a firearm without being the holder of (a) a licence… (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it…” commits an offence.

Therefore, an estate trustee, who automatically assumes possession of the deceased’s assets upon the death of a testator, may suddenly find him/herself in possession of firearms without the requisite licence and/or required registration certificate, and without a basic understanding of how the Canadian firearm regulations apply to them.

Thankfully, a special exemption exists under, section 91(4)(b) of the Criminal Code, that in most cases will allow an estate trustee to possess or otherwise deal with the deceased’s firearm(s) without a licence for the purpose of administering the estate.

Specifically, section 91(4)(b) states that section 91(1) will not apply to “ … (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law and who, within a reasonable period after acquiring possession of it, (i) lawfully disposes of it …”.

The phrase, “by operation of law”, generally includes the automatic transfer of legal possession from the deceased to the appointed executor, at the moment of death. In effect, section 91(4)(b) grants the estate trustee the same rights the deceased had to possess firearms, so that the estate trustee may settle the estate in an orderly manner, and with minimum delay.

However, there are exceptions to the application of this provision, for example, where the deceased did not possess a valid license or registration certificate at the time of death, or where the appointed estate trustee is under a court-ordered prohibition from possessing firearms.

The RCMP has published a helpful fact sheet to assist those trying to understand the regulations and their obligations as estate trustees. However, in order to ensure compliance, it is recommended that an estate trustee who finds firearms among the deceased’s estate assets, fill out an Authorization Form 6016 – ‘Declaration of Authority to Act on Behalf of an Estate’ and submit it to the RCMP Canadian Firearms Program (the “CFP”) to receive further information and guidance. The CFP can also be contacted by phone at 1-800-731-4000.

Thank you for reading,

Ian Hull

27 Oct

Facebook and Apple to Pay for Female Employees to Freeze Eggs – Some Estate Planning Considerations

Ian Hull Estate Planning, Wills 0 Comments

Within the recent past, the success rates and popularity of conceiving a child through Assisted Reproductive Technologies (“ART”) have increased significantly. Technological advances now make it possible for genetic materials to be frozen and preserved for decades, before being thawed for use in the conception of children.

Both Apple and Facebook have recently announced that they will cover the cryopreservation of unfertilized eggs for female employees as part of their benefits plans. These announcements raise novel estate planning considerations for the female employees who will be freezing and preserving their eggs.

Today’s technology allows the frozen eggs to survive the individuals from whom they were obtained. Accordingly, the wills and trusts of the female employees seeking to utilize this option may need to be updated to anticipate and address issues arising from the potential use of the frozen eggs after their death.

First, the individual’s will or trust should be updated to specify whether the frozen eggs are to be destroyed, used by a spouse, partner or parent, or donated.  If they are to be used by a spouse, partner or parent, the female employee may also need to consider to what extent a child subsequently conceived through the use of her preserved egg(s) after her death are to receive a share of her estate. If not properly considered the child subsequently conceived could be inadvertently disinherited by the terms of an existing will.

In addition, it might be necessary to consider potential impacts this later use of the preserved eggs could have on the administration of her estate. The mere existence of the frozen eggs has the potential to create significant delays to the administration if a portion of her estate must be set aside for this later conceived beneficiary. In some US States they have legislated notice periods, within which the spouse who intends to use preserved genetic materials must communicate their intention in order to prevent such delays to the estate administration.

In British Columbia, the Wills, Estates & Succession Act sets out that a posthumously conceived child can inherit as if he or she had been born in the lifetime of the deceased person if the surviving spouse or person in a marriage-like relationship with the deceased at the time of death gives notice to the personal representative, beneficiaries, and intestate heirs that the person may want to use reproductive material of the deceased to conceive.  The child must be born within 2 years from the death (or longer, if extended by the court) and survive for at least five days.  The deceased parent must also have given consent in writing to the use of his or her reproductive material after death. Ontario’s Succession Law Reform Act does not address this issue.  The federal Assisted Human Reproduction Act also provides that no person can use reproductive material or remove it from the donor’s body after death unless the donor has given written consent.

These are some of the many estate planning considerations individuals should be mindful of when seeking to use this technology. It should be noted that the legal issues created by the use of ART are arising with increasing frequency, we’ve previously blogged on related issues here and here. As the technology and its use is still relatively new, the law in this area is still developing. It will be interesting to see how the law develops over the coming years with the increasing use, no doubt encouraged by the benefits inclusion recently incorporated by Facebook and Apple.

Thank you for reading,

Ian Hull

Reminder:  Simplified Procedures for Small Estates Focus Group – November 4, 2014

The LCO in conjunction with Hull & Hull LLP have arranged a focus group for November 4, 2014 from 2:30 PM until 4:30 PM, at Hull & Hull LLP, 141 Adelaide Street West, Suite 1700, in Toronto (and not from 1:00 – 4:00 as previously advertised). Our recent blogs which outline the proposed simplified procedures can be viewed here and here. Call in access is available, and anyone interested in participating can contact Amanda Rodrigues at arodrigues@lco-cdo.org. We encourage you all to participate!

20 Oct

Proposed Law Would Assist Estate Trustees

Ian Hull Executors and Trustees 0 Comments

Guelph’s MP, and former Estate lawyer, Frank Valeriote, recently tabled Bill C-247, the Service Canada Mandate Expansion Act (the “Bill”).  If enacted the Bill would require the Minister of Employment and Social Development to establish Service Canada as the single point of contact for the Government of Canada in respect of all matters relating to the death of a Canadian citizen or Canadian resident.

Under our current system, estate trustees are often required to contact a multitude of government departments upon the death of an individual. These departments can include (to name a few):

  • Service Ontario for Old Age Security and CPP Benefits, Employment Insurance and in relation to the Deceased’s Social Insurance Number Card;
  • The Canadian Revenue Agency in relation to the completing of the Deceased’s final tax returns;
  • Passport Canada if the Deceased had a valid passport at the time of death; and
  • The RCMP if the Deceased had firearms.

There is little if any communication between the various government departments and each generally has unique documentation and procedural requirements that must be deciphered and complied with by the estate trustee.

Valeriote indicates that “the creation of ‘one point of contact’ at Service Canada would bring efficiency to the system and would remove the guess work for survivors and estate administrators who may not be fully aware of the deceased’s obligations to the federal government.”

He goes on to state that the Bill “will reduce the possibilities of benefit overpayments and costs to the federal government to retrieve such expenditures… and avoid the possibility of requests arriving years later from the federal government demanding repayments or penalties”.

Under the proposed Bill, an estate trustee need only advise Service Canada of the death once. This one contact would trigger a notification to all relevant departments, who would then be required to advise the deceased’s estate trustee of the specific procedures and responsibilities applicable in relation to the cancellation of benefits, the return of identification documents and access to any survivor benefits.

A similar system has been successfully implemented in the United Kingdom called “Tell Us Once.” The process in the UK allows an estate representative to report a death to most government organizations with just one communication.

The Bill comes on the heels of the 2013 Fall Auditor General’s Report titled “Access to Online Services”. In Chapter 2 of this report, under ‘delivery of services to Canadians’ the Auditor General examined the current practices and procedures relating to death notifications and highlighted the lack of coordination and communication between the various departments.

Valeriote says “the current system is far too cumbersome for those who have lost their loved ones. Should the Bill be passed people will finally find some comfort in knowing they won’t be facing an endless labyrinth of frustration in wrapping up the affairs of their loved ones which sometimes leads to higher legal bills.”

The Bill passed its second reading in the House of Commons Oct. 8, 2014, and was referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities for further study.

If the Bill becomes law, the Minister of Employment and Social Development will have one year to establish Service Canada as our single point of contact.

Thank you for reading,

Ian Hull

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