Corporations and Estates – What happens when a Will gifts an asset that is actually corporately owned?
The use of privately held corporations to manage an individual’s assets or business interests seems to be an increasingly common strategy and tool. Although the use of privately held corporations offer a number of potential advantages to the individual both during their lifetime and as part of their estate planning, it does raise a number of novel issues for the administration of the estate which may not exist if these assets had been directly owned by the individual. Such potential issues manifested themselves before the Ontario Court of Appeal in the relatively recent decision of Trezzi v. Trezzi, 2019 ONCA 978, where the court was asked to determine the potential validity of a bequest in a Will of property that was not directly owned by the testator personally but rather owned by them through a wholly owned private corporation.
As privately held corporations are often wholly owned by a single individual owner the individual in question would be forgiven for thinking that any assets that are actually owned by the corporation are their own. Such a misconception could carry with it some significant legal issues however, as it ignores the important fact that at law the corporation and the individual owner are two distinctly separate legal entities, and that although the individual owner of the corporation can exercise almost absolute control over the corporation as the sole shareholder, and could through such control likely direct the corporation to take any action regarding any asset the corporation may own (subject to any obligations of the corporation), they do not personally “own” any asset that is in fact owned by the corporation. Such a distinction is potentially important to keep in mind when a person who owns assets through a private corporation is creating their estate plan, as they should be mindful of whether any specific asset which they wish to bequest is owned by them personally or through the corporation.
In Trezzi the testator left a bequest in their Will to one his children of all equipment and chattels that were owned by a construction company that was wholly owned by the testator. This bequest was challenged by certain of the residuary beneficiaries, who argued that as the equipment and chattels in question were not actually directly owned by the testator, but rather the corporation, the testator’s bequest of such items had failed and that the items in question should instead continue to form part of the corporation and be distributed in accordance with the residue clause to their potential benefit.
The Court of Appeal in Trezzi ultimately upheld the bequest in question; however, in doing so, noted that the language was potentially problematic and encouraged counsel to be more careful when drafting in similar circumstances (even including potential precedent language to follow from the Annotated Will program). In upholding the bequest the Court of Appeal was in effect required to do an interpretation application for the Will, noting that they placed themselves in the position of the testator and considered what his intention would have been when including the provision in question. The court ultimately concluded that it would have been the testator’s intention with such a provision that the executor was to wind up the corporation in question, with the assets being distributed to the beneficiary in question as part of such a process. In coming to such a conclusion the court states:
“While it is true that Peter, as the sole shareholder of Trezzi Construction, did not directly own the corporation’s assets, that does not complete the analysis. In substance, Peter’s shares in Trezzi Construction became part of the estate, and Peter effectively directed his executors to wind-up the company and to distribute its assets in accordance with his will, even though he did not own those assets directly. As already noted, the key question thus boils down to whether this was indeed Peter’s subjective intention in his will…” [emphasis added]
Although cases like Trezzi show that under certain circumstances a bequest of assets which are not directly owned by the testator but rather through a corporation can be upheld such a result cannot be guaranteed, as the Court of Appeal in Trezzi was required to resort to the rules of construction and place themselves in the position of the testator to uphold the bequest in question. As a result, a testator would be wise to take extra care when dealing with an estate plan that includes the potential bequest of assets that are corporately owned to ensure that the ownership of such assets is properly described and the executor is provided with any necessary authority and direction to deal with the corporately held assets on behalf of the estate.
Thank you for reading.
There’s a lot to like about Paul Allen – the Microsoft co-founder who died on October 15 at age 65. He was a brilliant man, whose perfect SAT score of 1600 during his college years foreshadowed his financial success.
Few can match this success. Allen died with an estate estimated at $26 billion. But it’s not just the size of the estate that’s impressive, it’s the scope of his interests that are remarkable, most of which played a role in building the value of his holdings. At his death, Allen ownership interests included:
- Three professional sports teams – the Seattle Seahawks, Portland Trail Blazers, and the Seattle Sounders
- A space-travel company, Vulcan Aerospace
- A film production company, Vulcan Productions
- A real estate company, Vulcan Real Estate, with a large focus on the redevelopment of land in the Seattle area; and
- An extensive fine art collection.
In 2010, he signed the Giving Pledge , a commitment by billionaires around the world to donate at least half of their fortune to philanthropic causes. He also invested in, or donated money to, a number of other initiatives, from artificial intelligence research to elephant conservation in Africa. More locally, he played in a band, Paul Allen and the Underthinkers, and was an accomplished guitar player.
The life lessons
Admittedly, we aren’t all billionaires with perfect SAT scores. So, what can we learn from Paul Allen? This quote from him says it all:
“You look at things you enjoy in your life, but much more important is what you can do to make the world a better place.”
Here are three takeaways that I think are worth considering:
- He enjoyed life: He owned homes in several countries, owned two of the largest yachts in the world, and surrounded himself with people accomplished in the art, sport and film world. He rarely courted media attention – and he remained low-key until the end – but he seemed to thoroughly enjoy his life. So many people in every wealth bracket forget this important part of the equation.
- He followed his interests in making the world a better place: He saved sports franchises from relocation, movie theatres from demolition, and ensured that important stories were preserved and told. He knew intuitively that following personal interests was critical to his active involvement in projects and ultimately each project’s success.
- Much of his focus was local: We can likely do our most effective work if we focus locally, on the area of the world we know best. Paul Allen’s initiatives certainly had a global reach, but many of his projects were Seattle-based and he transformed the city and the U.S. north-west in significant ways.
Paul Allen’s estate is, not surprisingly, complex – and could take years to settle as this article explains. But it appears that the family business structure he left behind will continue to make the world a better place for many years to come.
Happy New Year – and thanks for reading!