Tag: estate law blog
It’s tax season. That wonderful time of year for number crunching, hunting for receipts and depending on your situation, hair pulling.
If you are an executor of the estate of a deceased person, you also have the responsibility of filing the deceased’s "final return." To borrow from a popular expression, the two certainties, death and taxes, follow each other. Final tax returns for those who die during the period from January 1 to October 31 are due April 30 of the following year.*
While there are no inheritance taxes in Canada there are a number of taxes that arise as a result of your death and must be included in the final return. Some of those taxes include the following:
Capital Gains Tax. For the purpose of calculating tax, the CRA deems a deceased to have disposed of all her capital property immediately before her death. This is referred to as a “deemed disposition.“ Depending on the deemed proceeds of disposition, there may be a capital gain or loss. Certain types of capital property are exempt from this rule and an expert should be consulted for specific advice.
RRSPs and RRIFs. These tax sheltered investment vehicles lose their status as such at death. When you die, the tax holiday ends and your RRSPs and RRIFs are collapsed. There is a deemed sale of any securities held in the RRSP or RRIF and any income made in the year preceding your death must be included in the final return. There are a few notable exceptions to this rule, such as a spousal rollover and transfers of your plan to minor and/or mentally infirm children.
There are many creative ways of reducing the taxes that surface after your death. The benefits of doing so may be substantial and result in considerable savings for your estate. When you consider the fact that you spend a lifetime building your assets, speaking to a profession about your estate is advisable. Your beneficiaries will thank you.
*For more information on how to file a final return, visit the Canada Revenue Agency’s website
The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner is taking place on Wednesday, May 30, 2007 in the Imperial Room at the Fairmont Royal York Hotel in Toronto. The Reception begins at 5:30 p.m. with Dinner at 6:30 p.m. Corina Weigl, the Chair of the Section, will bring the past year to a close as well as proceed with the election of the OBA, Trusts and Estates Section Executive for the 2007/2008 year. The Section will also pay tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Brian Schnurr.
The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.
The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:
• academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;
• participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and
• contribution to the development of wills, trusts and estate law.
Brian’s distinguished and esteemed career has included his unwavering commitment to, as well as the achievement of, excellence in these areas.
In addition to the Award for Excellence, the Widdifield Award and the Hoffstein Book Prize will be presented.
For more information, please contact Peter Guennel, OBA Sections Co-ordinator, at (416) 869 1047, ext 340, or by email at email@example.com or by visiting online.
Typically, at the beginning of each day in motions courts, the sitting Judge purges the list of matters scheduled to be heard that day; that is the Judge goes through the list to see which matters are on consent, those that are not opposed and those in which the parties wish to proceed. With the latter matters, the Judge may inquire as to the amount of the time the parties anticipate for their respective submissions. The Judge then usually hears the consent matters and those that are not opposed first because they may be able to be heard quite quickly and minimize the time in Court for the lawyers on those matters.
Before appearing in Court on a date, counsel are required to file with the Court, either two or three days (depending on the respective Court office) before the hearing date, a Confirmation of Motion form, confirming if the matter is proceeding, and if so, on what basis and in respect of what issues. The Court files pertaining to the matters proceeding on a given day are, generally speaking, given to the sitting Judge the day before.
Often matters which were confirmed on the Confirmation of Motion form as proceeding end up getting adjourned on consent, or proceed on fewer issues than indicated. Judges become frustrated when such situations arise if counsel, knowing that the status of a matter has changed, did not advise the Court as soon as possible with the result that the Judge needlessly spent significant time reviewing a file which in the end was not proceeding, in whole or in part.
On March 27, 2007, at an Ontario Bar Association, Trusts & Estates section meeting attended by a panel of several Justices, Justice Perell noted that to assist Judges in preparing for the next day’s matters, counsel can do the following:
(i) specifically list on the Confirmation of Motion form the materials that are being relied upon by the parties,
(ii) if the file is extensive, have someone attend at Court the day before the hearing date to organize the Court file and determine if all of the materials necessary for the hearing are in the file and, if not, to file a copy
(iii) write to the Court office should the status of the matter change between the filing of the Confirmation of Motion form and the hearing date, and
(iv) write to the Court office, if necessary, to advise as to the materials that are required for the hearing.
By following these suggestions we all benefit as the Court will be able spend less time on the matters that need less time and more on the substantive ones that justifiably need more time and due consideration.
Have a good day.
The 2007 Bencher Election and the respective campaigns by the Benchers seeking election (or re-election as the case may be) have been ongoing for quite some time now. Indeed, the process itself is pretty much at its end, except the voting. Many may have already voted. The deadline for voting in the election is April 30, 2007 at 5:00 p.m. EDT. Voting may be done by way of internet, telephone or mail.
There are 40 Bencher positions that are up for grabs – 20 from outside of Toronto and 20 from within Toronto.
The Law Society of Upper Canada is governed, however, by a Board of 48 Benchers. Forty of these 48 Benchers are the lawyers from across Ontario that are being elected on a regional basis as part of this election. The public is represented by the Law Society’s eight lay Benchers who are appointed by the Lieutenant Governor-in-Council (of the Ontario Government). There are also several ex-officio Benchers including former Attorneys-General of Ontario and former Treasurers of the Law Society.
The Benchers meet every month (Convocation) to deal with matters related to the governance of the legal profession and to make policy decisions. Benchers also sit on various Law Society Committees, and they participate on panels that hear cases concerning the conduct and competence of lawyers.
Members of the Law Society of Upper Canada in good standing are eligible to vote in the bencher election.
It is obviously important for members to vote in the current election in order to help determine the direction and governance of the profession for the next four years. As the adage goes, if you don’t vote then you can’t complain.
On April 26, 2007, The Law Society of Upper Canada will be honouring and presenting our own Rodney Hull with the Law Society Medal.
The Law Society Medal was struck in 1985 as an honour to be awarded by the Law Society of Upper Canada, the governing body of the lawyers of Ontario, to members who have made significant contributions to the profession.
The tribute is given for outstanding service within the profession whether in the area of practice or in the academic sphere or in some other professional capacity where the service is in accordance with the highest ideals of the legal profession, whether by devotion to professional duties over a long term or for a single outstanding act of service.
This honour is yet further recognition of Rodney’s distinguished career, which has included service to his profession on so many fronts.
He has been a lecturer at the Ontario Bar Admission Course and at Law Society of Upper Canada, Canadian Bar Association and Canadian Tax Foundation programs. He has also made extensive contributions to academic and professional journals in Canada. He is also the author of two standard reference texts.
Rodney was called to the Bar in 1957 and appointed a Q.C. in 1969. Aside from being a certified specialist in Civil Litigation, he is a Fellow of the American College of Trust and Estate Counsel and an Academician, The International Academy of Estates and Trust Law.
Rodney was also awarded the Ontario Bar Association Award of Excellence for Estates and Trusts in 2005.
Congratulations Rodney, the firm is very proud of you and your many outstanding accomplishments.
Listen to "The Hull & Hull website and a Practice Tip"
During Hull on Estates Episode #56, Ian Hull and Suzana Popovic-Montag review the updates on the Hull & Hull LLP website and discuss the available resources such as Hull & Hull TV (streaming videos), the Probator articles, and of course links to the blogpage/podcasts.
Ian discusses a book he has recently read, Getting Things Done by David Allen. Ian heard about this book on the Marketing Monger podcast.
Ian and Suzana’s Practice Tip for this podcast helps the process of fiduciary accounting go smoothly.
Read the transcribed version of "Tax Considerations for Separated Spouses"
During Hull on Estate and Succession Planning Podcast #57, Ian Hull and Suzana Popovic-Montag discuss tax considerations to keep in mind within the context of separated spouses.
They cover such issues as tax liability, spousal support and child support deductability and the deductability of legal fees.
On April 12, 2007, I attended, with colleagues from Hull & Hull LLP, the gala tribute for the Chief Justice of Ontario, The Honourable R. Roy McMurtry, who is retiring at the end of May 2007. The event was held at the Toronto Convention Centre.
Prior to the gala, during the day, a conference was held in celebration and remembrance of the 25th anniversary of the Charter of Rights.
The gala event was co-hosted by the Treasurer of the Law Society of Upper Canada and the President of the Advocates’ Society.
The night was filled with a combination of in person tributes (including from the Lieutenant Governor of Ontario, The Honourable James K. Bartleman, The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, and The Honourable Madam Justice Rosalie Silberman Abella, Justice of Supreme Court of Canada) and those by way of video from various politicians, lawyers, colleagues and friends of the Chief Justice.
Our own Rodney Hull was included with those on the video tribute.
The tributes were a captive and eloquent blend of endearment, high esteem, personal notes and often wit, and covered the Chief Justice’s career as a lawyer, the Chairman and CEO of the Canadian Football League, a politician, his tenure as the Attorney General of Ontario and the Solicitor General of Ontario, his significant role in the patriation of the Canadian Constitution in 1982 and the creation of the Canadian Charter of Rights, and his appointments as, or to, Canada’s High Commissioner (Ambassador) to Great Britain, the Associate Chief Justice of the Superior Court (Trial Division) in Ontario (1991), the Chief Justice of that Court (1994) and the Chief Justice of Ontario (1996).
Believe it or not, towards the end of the evening, the Justices of the Court of Appeal sang a “tribute” to the Chief Justice (prepared lyrics to the music of “This land is our land, this land is your land”).
Before the night was over, two of the Chief Justice’s children, one of whom is a Judge of the Queen’s Bench in Alberta, and the other, apparently an actor/writer/comedian, spoke, or what might fairly be described as a roasting, of their father.
It was truly an impressive evening by and on all accounts, for an inspirational man considered by many to be a nation builder.
During Hull on Estates Episode #55, Sean Graham and Paul Trudelle discuss joint and several liability of trustees with respect to the administration of an estate. They focus on avoiding liability when there are two or more estate trustees.
Paul and Sean examine this estate topic with respect to the case of Fales v. Canada Permanent Trust Co. and Cooper (No. 2) Re.
Yesterday I reviewed the decision of Holmes Estate (Re)  B.C.J. No. 45. You will recall that a gift in the testator’s Will to “all my nieces and nephews” was interpreted in the circumstances to mean a bequest to the children of the testator’s siblings including the 18 nieces and nephews of the testator’s late wife.
One such niece, Patricia Meadows, had been married to Alfie Meadows. Alfie was seeking entitlement to a share in the residue of the estate belonging to Patricia, who had died before the testator. He was doing so on the basis of the language contained in the Will that if any of the testator’s nieces or nephews predeceased him, that person’s share was to be paid to their surviving spouse.
The problem for Alfie was that he had been convicted of Patricia’s murder! The Court quite justly denied Alfie entitlement to Patricia’s share in the estate by applying the general rule of public policy that a person is precluded from benefiting from a crime.
The irony in this case is that while Alfie’s crime didn’t pay for him, it did benefit the surviving nieces and nephews, as the gift was a class gift (when a member of the class is disqualified their share is divided amongst the remaining members).
While this case made for an interesting read, I can only hope that the decision will help deter similar claims from arising again.
Have a good day,