The use of planning tools such as a “Henson Trust” is an often discussed topic in the estate law world for what can be done to allow an individual who receives benefits from the Ontario Disability Support Property (“ODSP”) to receive an inheritance from an estate without losing their benefits. Although the Henson Trust can be an effective tool to allow an individual to receive an inheritance from an estate while not losing their benefits, as a central tenant of the Henson Trust is that the inherited funds do not “vest” in the beneficiary until the trustee makes a distribution in their favour (thereby allowing funds in the trust not to count against the asset limit provided for by ODSP before they are distributed), a beneficiary and/or Estate Trustee cannot create a Henson Trust after the testator has died as the inherited funds have typically already “vested” in the beneficiary and therefore would count against the asset limits for ODSP. As a result, if a beneficiary who receives an interest in an estate is also an ODSP recipient (and the Will did not use a tool such as a Henson Trust to ensure the inherited funds do not count against the ODSP qualification criteria), there is the risk that the beneficiary could lose their ODSP benefits as a result of the inherited funds putting them offside the ODSP qualification criteria.
Although advance planning is always preferable when dealing with a situation in which a potential beneficiary receives ODSP, sometimes for whatever reason 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. Should this occur, although the options available after the testator’s death are more limited to the beneficiary, there remain certain remedial steps that could be taken by the beneficiary to help to insulate them against the risk that their newly inherited funds would disqualify them from ODSP.
The general parameters for who is entitled to ODSP and how it is to be administered is governed by the Ontario Disability Support Program Act (the “Act“), section 5(1) of which provides that the government through regulation is to establish a maximum “asset limit” for an individual who receives ODSP. The regulation that establishes the asset limit is O.Reg. 222/98 (the “Regulation”), section 27(1) of which sets $40,000.00 as the current maximum “asset limit” for an individual who receives ODSP (although such an asset limit is potentially higher if the individual has a spouse or dependants).
As a result of section 5(1) of the Act in collaboration with section 27(1) of the Regulation, if an ODSP recipient’s total assets exceed the $40,000.00 maximum asset limit after receiving their inheritance they would likely lose their ODSP benefits. To this respect, if the potential inheritance the beneficiary/ODSP recipient is to receive is significant, there is the very real risk that if no steps are taken to help to insulate the inheritance from counting against the asset limit the beneficiary would lose their ODSP benefits.
Although section 27(1) of the Regulation provides that the ODSP recipient’s assets may not exceed the maximum threshold, section 28(1) of the Regulation lists certain assets and/or interests which are deemed not to be included in the calculation of an ODSP recipient’s assets. These “non-counting” assets potentially include a trust that is established by a beneficiary with funds that they inherit from an estate. Specifically, item 19 of section 28(1) of the Regulation provides that the following would not count against the asset limit:
“Subject to subsection (3), the person’s beneficial interest in assets held in one or more trusts and available to be used for maintenance if the capital of the trusts is derived from an inheritance or from the proceeds of a life insurance policy.”
Section 28(3) of the Regulation then further provides:
“The total amount allowed under paragraphs 19 and 20 of subsection (1) shall not exceed $100,000.”
As a result of section 28(1)19 of the Regulation in conjunction with section 28(3), if an ODSP recipient receives an inheritance or the proceeds of a life insurance policy they are allowed to put up to $100,000.00 of such funds into a trust to be held for their benefit without such funds counting against their asset limit for ODSP. As a result, if the inheritance that the ODSP recipient is to receive is $100,000.00 or less (or close to $100,000.00 such that any excess over $100,000.00 would not put them offside the asset limit), the potential option of putting the inheritance into a trust for the benefit of the ODSP recipient may be available to help insulate the inherited funds from counting against the asset limit.
If a beneficiary/ODSP recipient would like to explore the possibility of establishing such a trust after death they should speak with a lawyer to ensure that the trust is drafted in compliance with ODSP requirements.
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In Ontario, by reason of s. 17(2) of the Succession Law Reform Act, if a testator’s marriage is terminated by a judgment absolute of divorce or is declared a nullity, any devise or bequest to his or her former spouse, any appointment of his or her former spouse as estate trustee, or any grant of a power of appointment to his or her former spouse is revoked, and the will is to be construed as if the former spouse had predeceased the testator.
This is subject to a contrary intention appearing in the will.
This provision was enacted in 1974. Prior to that, bequests to a former spouse remained valid until the testator made a new will, revoked the will, or remarried. (S. 16 of the SLRA provides that a will is revoked by marriage, subject to certain exceptions.)
In Page Estate v. Sachs (H.C.J.), 1990 CanLII 6903, the court had to grapple with the question of the retrospective application of this section. There, the testator made a will in 1968. The will gave the estate to the testator’s spouse. The testator and his spouse were divorced in 1974. The testator died in 1986. The question for the court was whether s. 17(2) would apply in those circumstances.
The court found that s. 17(2) has retrospective application. The gift to the spouse was revoked. The testator’s estate was distributed as if the former spouse had predeceased.
In the decision, the judge quoted from the “Report On The Impact of Divorce on Existing Wills” by the Ontario Law Reform Commission. It was said that s. 17(2) “represents remedial reform legislation in aid of those former spouses who neglect to alter their wills following a divorce and thereby bestowed upon their former spouse unintended windfall benefits.” The judge went on to observe that the section “simply asserts the finality which a decree absolute renders to the relationship and status of the former spouses and ties up any inadvertent loose ends which could resurrect the spousal status.”
Note that the provision only comes into play where there is a divorce or the marriage is declared a nullity. Separated spouses should “tie up any loose ends” and ensure that they consider revising their will upon separation. My first exposure to estates law involved a matter where a wife moved to divorce her husband. The husband was so irate that he vowed that she would not get anything from him in the divorce, and committed suicide. He did not revise his will. As a divorce had not yet been granted, his entire estate passed to his wife, which was clearly contrary to his intentions.
Don’t leave your ends loose.
The Henson Trust has become fairly common estate planning tool for those looking to provide a bequest to someone who may be receiving government benefits such as ODSP without such an individual losing their qualification to the government benefits. At the core of the Henson Trust is the concept that the trust is wholly discretionary, with the assets that are placed in the trust not “vesting” in the beneficiary who is receiving the government benefits until the trustee has decided to make a distribution in their favour. This allows the trustee to ensure that the beneficiary does not receive a greater amount from the trust in a given time period than allowed under the government benefits, such that the beneficiary can continue to receive their government benefits as well as receive funds from the trust.
But what happens to any funds that may be left in the trust upon the death of the beneficiary for whom the Henson Trust was primarily established? Typically, the terms of the trust will provide for a “gift-over” of any residue to an alternate beneficiary. If the trust fails to provide for such a “gift-over” however, it could have significant repercussions to the primary beneficiary for whom the Henson Trust was established, and could result in the Henson Trust being declared void.
For a trust to exist it must have what are known as the “three certainties”. They are:
- Certainty of Intention – It must be clear that the settlor intended to create a trust;
- Certainty of Subject Matter – It must be clear what property is to form part of the trust; and
- Certainty of Objects – It must be clear who the potential beneficiaries of the trust are.
A trust that does not have the “three certainties” is an oxymoron, insofar as there can be no trust that offends the three certainties as the trust failed to be established. In the circumstance contemplated above, the lack of “gift-over” upon the primary beneficiary’s death would arguably equate to there being a lack of “certainty of objects”, insofar as it is not clear who all of the potential beneficiaries of the trust are. If it is found that the trust does offend the “certainty of objects” it would fail. Should the trust fail, the primary beneficiary for whom the Henson Trust was established would no longer have the funds which would have formed the Henson Trust available to top up the funds which they receive from their government benefits, with such funds likely now forming part of the residue or being distributed on a partial intestacy.
Although the historical application of the “three certainties” would result in the Henson Trust contemplated above having been declared void from the beginning, insofar as no trust that offends the three certainties can be found to exist, it should be noted that the court in Stoor v. Stoor Estate, 2014 ONSC 5684, went to great lengths to avoid such an outcome. In Stoor Estate, notwithstanding that the court found that the trust in question failed as a result of it offending the three certainties for a lack of “certainty of objects”, the court delayed the failure of the trust until after the primary beneficiary’s death believing that it was in keeping with the testator’s intentions.
There has been significant debate about whether the Stoor Estate decision was correctly decided, and what impact, if any, it should have upon the historical application of the “three certainties”. What is not in debate however is that it is important that when drafting a Henson Trust, or any trust for that matter, to ensure that you provide for a gift-over of the residue upon the primary beneficiary’s death. If you fail to provide for such a gift-over you run the risk that the trust will be declared void for offending the three certainties, thereby depriving the individual for whom you were establishing the Henson Trust the opportunity to receive such funds in addition to their government benefits.
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When speaking of the gifts left in a Will, people often hear the terms “legacy”, “bequest” and (less frequently) “devise” thrown around interchangeably. But what specifically do these terms refer to?
A “bequest”, which can be used interchangeably with “legacy”, refers to testamentary gifts of personal property. While both terms are used, the Succession Law Reform Act uses the term “bequest” in referring to these types of gifts. There are three types of bequests: general bequests, specific bequests, and demonstrative bequests.
General bequests refer to gifts that are to be provided out of the estate generally. It does not refer to any particular thing. Thus a gift of “$10,000.00 to my friend F” is a general bequest. The money is to be raised from any of the general assets of the testator.
Specific bequests refer to gifts of particular property or which are to be funded by particular assets. For example, gifts of “my car” or “the cash held in bank account X” are both specific bequests as they refer to particular property which the recipient is to receive. Where the asset is no longer in the possession of the testator at the time of death, the gift will fail.
A demonstrative bequest is a hybrid between general and specific bequests where a gift of money is left with the intention that it is to be funded primarily out of certain assets. But where the assets are insufficient to meet the gift, the gift is to then be funded out of the general estate. A gift of “$10,000.00 to be paid first from the proceeds of sale of my car” would be a demonstrative bequest.
Unlike a “bequest”, a “devise” refers to a testamentary gift of real property. Society and the law have long distinguished between real property and personal property. This can be seen, for example, in the traditional availability of specific performance as a remedy for breaches of contracts involving real property. In such situations, real property was accepted as something unique enough to require specific performance, rather than mere monetary damages.
The primacy of real property over personal property can equally be seen in estates law in situations where there are insufficient assets in the estate to satisfy all debts, bequests, and devises. In such a situation, the principles of abatement provide the following order of abatement: general bequests, demonstrative bequests, specific bequests, and finally devises.
To learn more about the principle of abatement, see this recent blog.
With the continuing distinction between real property and personal property, the difference between devises and bequests remains important. Which brings us back to the title of this blog; Can you bequeath your home to a stranger in Ontario? Nope, that would be a devise.
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Dividing one’s personal property upon death can be a contentious matter. If an item of personal property is not specifically gifted to an individual, there is a chance that the beneficiaries may find themselves litigating.
A specific bequest can provide clarity. Pursuant to Black’s Law Dictionary, a specific bequest is “a legacy of a specified property or chattel to a particular person that is detailed in a will.” We have previously blogged on the use of specific bequests.
Another way to give personal property is through the use of a memorandum attached to the will. This memorandum may be updated to list all of the personal property being gifted, and can either be binding (assuming certain requirements are met) or precatory. We have previously blogged on the use of a memorandum to give personal property.
The use of a specific bequest or a memorandum may help to avoid battles over personal property. If personal property is not given to an individual through a specific bequest, an individual may receive items through a percentage division of either such property (e.g. “to be equally split between my two sons”), or the residue.
One possible issue with giving a percentage division of property or leaving residue to the beneficiaries, is that they may fight over specific items. This is what is happening with the Estate of Audrey Hepburn. In Audrey Hepburn’s will, she left a storage locker as part of the inheritance for her two sons. The locker was filled with various items including fashion accessories, posters, awards, scripts, and pictures, and was to be shared equally. Her two sons are now in dispute over who gets to keep what items in the locker. If Hepburn were to have specified the items to be given, it is possible that this inheritance dispute could have been avoided.
While specific bequests and memoranda are helpful in certain circumstances, it is important to consider the potential value of the bequest before gifting it. Valuations are important in order to ensure that the property being gifted is truly representative of the testator’s intention in leaving the property. For example, an individual may decide to leave each of her sons a separate painting. Without a valuation, this seems like an equitable arrangement. With a valuation, however, it may be that one painting is worth $300.00, and the other is worth $3,000.00. Equalizing the value of personal property may be an important consideration in making a specific bequest in order to avoid potential litigation.
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This week on Hull on Estates, Paul Trudelle and Doreen So discuss how a bequest to a witness may be void and who should not be a witness to the execution of a Power of Attorney.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Several years ago, my neighbour asked me to witness the execution of his will. I was glad to help, but at the same time, a little disappointed.
This is because of s. 12(1) of the Succession Law Reform Act. This section provides that, in effect, a bequest to a witness, the witness’s spouse, or a person claiming under either of them is void. The witness, however, remains a competent witness.
Similarly, s. 12(2) provides that a bequest to a person who signs a will on behalf of the testator is also void, as is any bequest to the person’s spouse or a person claiming under either of them.
However, the provisions are not absolute, and s. 12(3) allows the court to find that the bequest is not void. To trigger this saving provision, the court must be satisfied that neither the witness nor the witness’s spouse exercised any “improper or undue influence” on the testator.
In addition, if the witnessing was not necessary, as in the case where the will was a holographic will, or where there were two other proper witnesses, then the bequest will not be void.
(Things can get complicated where there is a codicil. A gift voided due to an attesting beneficiary can be validated if there is a proper codicil that is properly witnessed. On the other hand, a valid gift in a will is not voided where the beneficiary witnesses a later codicil: see Hull and Hull, Probate Practice, 4th ed., p. 181.)
Solicitors take note: in Whittingham v. Crease, 1979 CanLII 286 (BC SC), the drafting solicitor was successfully sued where a bequest to the plaintiff failed because his wife witnessed the signing of the will.
Alas, in the case of my neighbour, and due to the nature of the bequests (which did not include me), s. 12 did not apply.
Have a great weekend.
In Re Brooks Estate, 2011 BCSC 1606 (CanLII), a testator left a handwritten will in which he left his real property and two bank accounts to his “brother … Executor with Power of Attorney”. He goes on to list five other people and states “I would all the people named above to share equally in my estate [sic].”
The Estate Trustee applied for directions on the interpretation of the Will. Did the real property and accounts pass to the brother, or where they to be divided equally amongst the brother and the five other named beneficiaries?
Important to the decision was the fact that the real property and accounts made up the bulk of the estate.
What did the court do? The court found that the estate was to be divided amongst the five named beneficiaries and the Estate Trustee. The court noted that extrinsic evidence could be used to interpret the Will if there was ambiguity, and held that the only extrinsic evidence of relevance was the fact that there were no significant assets other than the real property and the accounts. The testator, the court held, must be presumed to know what his estate consisted of, and that there would be no significant residue beyond the specified assets.
In any event, the court held that extrinsic evidence was not required, as there was no ambiguity. The testator referred to “my estate”. “In the absence of any further language limiting their application, the plain and ordinary meaning of those words is that all individuals named in the will share equally in the entire estate.”
Costs of all parties were ordered to be paid from the estate. The modest estate had a value of approximately $275,000. Presumably, the costs of the parties absorbed a significant part of the estate: costs which could have been avoided by a properly drafted will. Perhaps a better title for this blog would be “The Perils of a Handwritten Will.”
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
What happens if a Will gives a life interest in an estate to A, with a gift over to B, C and D, or their issue alive upon A’s death, and A decides to disclaim her interest in the estate?
This issue was considered in Clarke v. Di Bella, 2010 BCSC 505 (CanLII).
There, the testator made a Will that provided that until the death of the survivor of the testator or A, the Estate was to pay the income and capital, as the trustees may decide, to A. Upon A’s death, the residue was to be divided amongst B, C and D. If any of B, C or D was to predecease A leaving children, then that person’s share would go to their children.
A decided to renounce her gift, and have the residue pass to B, C and D immediately. That is, the gift to B, C and D would be accelerated.
The Public Guardian and Trustee opposed, taking the position that acceleration of the gift was contrary to the intentions of the testator, and that acceleration would disentitle the children of B, C and D from a possible inheritance.
The Court disagreed with the PGT’s position, and allowed the acceleration. It held that from a review of the case law, there were four clear principles that applied:
a. Acceleration is presumed unless there is an indication to the contrary;
b. In assessing whether there is an intention to the contrary, the court must look at both the instrument and the surrounding circumstances;
c. The instrument must be examined in its entirety, and clauses must not be examined in isolation; and
d. The intentions must be viewed, as nearly as possible, from what would be the views of the testatrix, applying an objective standard.
While many cases have disallowed acceleration, the court did not feel that the present circumstances prevented acceleration.
The court did, however, agree that the intention of the testatrix was that no beneficiary would receive a bequest before the age of 25, and imposed a restriction on distribution before the beneficiaries turned 25.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
Cy pres is the equitable doctrine under which a court interprets a document containing a gift to charity by substituting another charity to reflect as closely as possible the donor’s intention. Courts use cy pres when a donor’s original charitable purpose cannot be exactly fulfilled. When literal compliance is impossible, the general intention of the donor should still be carried out as nearly as possible (cy pres) so that the charitable bequest does not fail.
In our area of expertise, estate and trust litigation, cy pres applications are quite common to determine the proper beneficiary(s) of a subject testamentary bequest. Megan Connolly has blogged on the application of the cy pres doctrine to charitable bequests in Wills. Cy pres has been applied in other areas of the law.
In the context of class action proceedings, settlements increasingly include cy pres orders (as they are often called) where part of the settlement funds are paid to charitable and non-profit organizations, to be applied to activities that may reasonably be expected to benefit class members. In a recent decision approving the settlement of a class action against a financial institution involving alleged unauthorized charges for foreign currency transactions, Justice Cullity reviewed cy pres orders in class action settlements and ultimately made an order for the Law Foundation of Ontario to receive $14.2 million to create a trust fund “for the purpose of advancing public access to justice in Canada”. Justice Cullity noted that access to justice had been used as a ground for certifying the proceeding. Class members and other members of the public would benefit from enhanced access to justice in the future.
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Bianca La Neve
Bianca La Neve – Click here for more information on Bianca La Neve.