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!
For business owners, part of a comprehensive estate plan should include a succession plan for your business. It is important to start planning the succession of your business early and revisit it from time to time. This should not be a single, discrete task, but an ongoing process over time. The Canada Business Network, a government organization providing resources and information to businesses, suggests that the process of retiring or exiting from your business could take up to 5 years. Furthermore, in case of unexpected illness or death, you do not want to be left without a plan.
Your succession plan should include consideration of matters such as the vision for your business, the selection of a successor and a plan for their training, and the timeline for your transition out of the business. It could also include a plan with respect to how you might remain involved following your transition, and in what capacity.
You will need to consider whether you want to transfer the business to another person, or sell it, either to a partner, third party buyer, or even an employee. In a family business, you may wish to transfer the business to family members who have been involved in the business. This would ideally be implemented much earlier than your planned exit to allow family members to work in the business, learn it over time, and be prepared to take over when the time comes. If there are multiple family members involved, it may be difficult to decide who you wish to take over the responsibility, and may be even more difficult to communicate to those not selected. Regardless of how difficult this conversation may be, it should nonetheless be discussed sufficiently early to attempt as smooth a transition as possible.
It is also important to consider estate planning strategies specifically relating to the transition of your business. Some considerations could include how to transfer your shares to the successor in a way that minimizes tax, and whether you will be able to make use of the capital gains exemption from dispositions of Qualified Small Business Corporation shares. You may want to consider implementing an estate freeze by exchanging common shares for preferred shares, and issuing new common shares to your successors in order to freeze the value of your shares in the business. The value of future growth will then accrue to the common shares held by the successors. In this regard, and with respect to your entire succession plan, it would be wise to work with professional advisors to create and implement a tax-efficient method of transitioning your business that will work best for you.
Thanks for reading.
Client satisfaction is a tricky maze to navigate. In some ways, we are most successful as lawyers when clients on both sides are equally dissatisfied. The object of the game is to settle on a solution that is fair to all concerned. This necessarily means that no one side is going to get the key to the city and the pot of gold at the end of the rainbow.
That said, we risk great lawyer dissatisfaction if our clients do not refer us to others or come back when the need arises.
In "Three Secrets to Effective Communication" Walter Bristow, a US lawyer who practises estates law (amongst other things) says that to convince people to act or buy a service we need to:
- Involve them by asking questions, not simply tell them the law or what we think;
- Motivate by telling an illustrative story that engages them and evokes their curiosity; and
- Use analogies to turn the abstract into something tangible – he gives an example of how to explain a trust as akin to a warehouse with trustees as security guards
Most people make decisions based on emotion. Advertisers already know this – I’ll bet you’ve seen an ad or two with kittens or babies in them. How, then, do we constructively harness this knowledge with a view to providing client satisfaction and excellent service in the legal industry? At the end of the day, it is not how a client does, but how he or she feels that will determine the level of satisfaction and the number of referrals sent our way. Since clients are usually human, this just might have very little to do with the relative degree of success in court.
So, the next time you get a phone call or e-mail from a client, try responding just a little quicker than usual and make someone’s day!
Sharon Davis – Click here for more information on Sharon Davis.
When browsing through any bookstore, I must confess that my eyes often glaze over when passing through the business section. In a contest with all of the other offerings out there, the history of a business dynasty or an insider’s account of a trading scandal can seem, well, dry. So, it was a bit of a surprise that I found myself ordering from Chapters a little book called "The Obvious: All You Need to Know in Business. Period." by James Dale. Dale is the former CEO of an advertising agency and now is a business consultant. His book came to my attention when it was profiled in the Globe & Mail’s Report on Business a few weeks back. Unlike other comparable offerings, this book appealed to me as a service provider. From the standpoint of the legal profession, particularly those of us in private practice, the advice, while (as the title implies) somewhat obvious, is worth pondering. A survey of some of the titles of Dale’s chapters give a glimpse of his thesis: "Work is a Verb" (sad but true)… "Listen More Than You Talk"(very tough for anyone who loves the sound of their own voice!)…"Every Job is Sales"…"Simple is Better Than Complicated"…"Less is More"…"Say What You Mean"…"Energy–The Unfair Edge"…and my favourite, "Imagine You Worked for You"–what better way to improve the workplace? Lawyers are inherently conflicted: while they are expected to have a superior command of the English language and advocate aggressively on behalf of their clients, many will acknowledge that the most respected in their profession are those who are plain-spoken and reasonable in demeanour. Not surprisingly, it appears from Dale’s experience that these traits are commonly respected across the spectrum of business.
Have a great day,
During Duct Tape Marketing’s August 16 2006 podcast, the host, John Jantsch, interviewed Seth Godin, who has just published a new book, Small is the New Big, which is essentially a compliation of Seth’s popular blogs.
The theme of this book is that big used to matter. Working for big companies used to be enviable, as big companies could defeat small companies with large marketing and advertising budgets. People were obsessed over the economies of scale and no one ever talked about economies of little.
However, Seth’s view is that when treat people with respect and as individuals, you have the flexibility to react to different changes and circumstances, in a sense you are acting small.
Seth points out that it doesn’t matter if you are a big or small businesses, rather he is saying that businesses must focus on how they act, and the way that they operate in their own economic environment. When you act small, you can eventually become big.
Therefore, Seth expresses that in his experience there does not seem to be any core relationship between the size of the business and how the business acts.
One of the significant changes over the past short while, in Seth’s view, is that people will now seek out information that they think is either important or interesting to them. As there are more alternatives, people are pickier about what they will participate in. He notes that the minute that you treat the client or consumer like a cog in the wheel, you will find your customer/client immediately looking at another competitive alternative.
Number Eight: Thou shalt Have a Monetization Strategy. This extends beyond the scope of Number Six, which discusses global strategies and focuses on the requirement to eventually truly monetize your podcasts. This monetization strategy could be something such as the book strategy, or simply ensure that your core audience is receiving helpful and relevant information and then throw out the possibility that you can be eventually retained to provide your services.
In our specific case, the obvious model is to assist estate lawyers in the process of their day-to-day practice with a view to being available to provide services beyond that which come naturally to the audience, such as litigation support.
Number Nine: Thou Shalt Consume the Best. The two speakers remind us that there is, of course, some prioritization that needs to happen in the context of podcast listening. You may listen to many hours of podcasting, you must ensure you are consuming the best of that podcast, and also ensure that you too are on top of the best in what is going on. We already follow this practice in our daily lives, as most of us naturally want to watch the Olympics not the local regional finalists, just as we watch Tiger Woods, and not the 100th place PGA Tour Leader.
Number Ten: Thou Shalt Live the Freedom Lifestyle. By following the Ten Commandments, you can ultimately end up in this last commandment.
We really hope that this series on business podcasting best practice has been helpful and as always please send us your comments and questions, we would love to get your feedback on both our blogposts and podcasts.
All the best,
Ian and Suzana
During the Marketing Online Live podcast #39, the hosts discussed the final five commandments of business podcasting.
Number Six: Thou shalt go in with a strategy. As we were told, strategy acts as the hinges that open the doors to great business opportunities. The hosts provided us with a four-part breakdown on the question of strategy: strategize, monetize, residualize, and capitalize.
Never Seven: Thou shalt teach consumption. As podcasters, we need to get better at teaching people how to access and use our new venue. Adding easy access to the podcasts by clicking on the play button on your webpage is an illustration of how to assist the non-techy users to embrace podcasting. A great example is Proctor & Gamble, one of the best consumer companies in the world. who doubled their sales in shampoo by simply adding the word "repeat" to the back of their shampoo bottles.
In our next blog, we will talk about the final three commandments.
All the best,
Suzana and Ian
In a recent podcast presented by one of the world’s leading podcasters, C.C. Chapman (June 17/06 – Managing the Gray) made several important points. He was discussing the fact that, in a recent podcasting chat forum that he was participating in, someone suggested that podcasting was not something that a business should be interested in as it was purely an entertainment vehicle.
C.C. Chapman strongly disagreed with this suggestion and indicated that, at the end of the day, podcasting is truly about content and every business is in the business of producing content. He emphasized the fact that quality content is something that a business always wants to reach out to its customers with, and he stressed that we must not engage in podcasting that is more sales-oriented. He further emphasized the fact that we should be focusing our podcasting on the content, as opposed to the presentation and the glitzy format.
C.C. Chapman cites as an illustration the use of podcasting by mainstream media such as BusinessWeek Magazine. BusinessWeek Magazine has a weekly podcast that is focused on its weekly cover story. The editor and the author of the article conduct a podcast to expand upon the paper version of the story on the cover of BusinessWeek. This is an excellent illustration of how to use podcasting in a business environment and how to use it in a way that enhances an existing marketing plan.