Tag: Estate

08 Mar

Harper Lee’s Will

Rebecca Rauws Estate & Trust, In the News Tags: , , , , , , , , 0 Comments

I recently read this article from the New York Times, which discusses the Will of Harper Lee, author of “To Kill a Mockingbird”, as well as some of the events that occurred several years prior to Harper Lee’s death. Harper Lee died in 2016, at the age of 89. In the years leading up to her death, there was some question as to her capacity, and possible vulnerability to coercion or undue influence.

The New York Times article states that Ms. Lee had had a stroke in 2007 and also had severe vision and hearing problems. Ms. Lee resided in an assisted living facility before her death. The article also describes the position taken by counsel for Ms. Lee as part of a copyright dispute in 2013, where counsel stated that Ms. Lee had been taken advantage of and coerced into signing away her copyright because she was “an elderly woman with physical infirmities that made it difficult for her to read and see.”

A couple of years ago, in 2015, Ms. Lee published her second novel, “Go Set a Watchman”. It turned out that this novel had been an earlier draft of her extremely popular book, “To Kill a Mockingbird”, which is purported to have been discovered by Ms. Lee’s lawyer, Tonja Carter, in 2014. There was some controversy surrounding the publication of “Go Set a Watchman” on the basis that Ms. Lee had not actually consented to the manuscript being published, and may have been manipulated into doing so. The publication of a new book was particularly remarkable given that Ms. Lee had only ever published one book prior to “Go Set a Watchman”—namely, “To Kill a Mockingbird”, which was published in 1960. However, an investigation was performed, and a determination made that there had been no elder abuse of Ms. Lee.

After Ms. Lee’s death, her Will had not been made a matter of public record, as a result of the successful efforts by Ms. Carter (named in the Will as executor) to have the Will sealed on the basis that Ms. Lee, who was a very private person, would have wanted her Will to remain private. It was only unsealed recently after litigation by the New York Times, and after Ms. Lee’s estate withdrew its opposition to the Will being unsealed.

The Will was signed only 8 days before Ms. Lee’s death, and apparently directs that the bulk of her assets be transferred into a trust formed by Ms. Lee in 2011. Ms. Carter is one of the trustees of this trust. Further documents relating to the trust are not public, and accordingly, very few details are known about it.

Given the questions surrounding Ms. Lee’s potential vulnerability in the years leading up to her death, it will be interesting to see whether anything further develops in relation to her estate, or the trust which apparently will hold most of the assets of Ms. Lee’s estate.

Thanks for reading.

Rebecca Rauws


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05 Mar

Who Holds the Copyright to an Obituary?

Rebecca Rauws Estate & Trust, News & Events Tags: , , , , , , , , , 0 Comments

When someone composes an obituary for a loved one who has passed away, carefully selecting the photograph to go along with it, one would suppose that the last thing on their mind is the copyright they may hold in that obituary and photograph. Of course, few people expect that an obituary could be the subject of republication or possible copyright infringement.

However, one website has been reproducing obituaries in their “database of deceased people”, leading to questions about ownership of the obituaries themselves, as well as the photographs accompanying them. The website reproduces obituaries and photographs, apparently without permission from the individuals who originally created and posted the obituaries. As reported in this Global News article, one family even states that an obituary for their loved one, which had not been written by their family and contained a number of errors, was posted on the website less than a day after their loved one passed away. The family did not know who wrote the obituary, although the website released a statement that all of the obituaries they re-post are already on the internet.

A recent article in The Lawyer’s Daily discusses an application for certification of a class action copyright claim against this obituary database website. The application claims that the website is infringing copyright and moral rights in respect of the obituaries and photographs. The moral rights claim relates to the website’s monetization of the obituaries by offering options to purchase flowers, gifts, or virtual candles, through affiliate retailers. Some funeral homes offer a similar service, but the article notes that the unsavoury nature of the website’s business model, which consists of “scraping” obituaries from elsewhere on the internet, without permission or notice, and making money by doing so through advertisements or the selling of flowers or virtual candles, could provide some support for the moral rights claim.

In relation to the copyright infringement claims, there may be some obstacles to overcome, particularly in relation to ownership of the copyright. According to The Lawyer’s Daily article, under the Copyright Act, R.S.C., 1985, c. C-42, the person claiming a copyright infringement must be the owner, assignee or exclusive licensee of the work in question. An assignment of copyright must be in writing. As mentioned in the article, this could create an issue if the photograph used in the obituary was taken, for instance, by a stranger.

Damages in the event of liability are also uncertain. In a recent case with similar facts, where the defendants were found to have infringed on the plaintiff’s copyright, the court awarded statutory damages of only $2.00 per image because the cost of capturing the images in that case was low. However, given the emotional aspect of obituaries, it is possible that the facts in this case could lead to a larger damages award.

Thanks for reading,

Rebecca Rauws


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19 Dec

When does a Beneficiary have a Specific Interest in Trust Assets?

Rebecca Rauws Estate & Trust Tags: , , , , , , , , , 0 Comments

A beneficiary of a trust can have either a vested or a contingent interest in the trust’s assets. For example, if a trustee holds an asset in trust for another person, with no further conditions attached, the beneficiary’s interest in that asset will be vested. However, if the trustee holds the same asset in trust for a beneficiary, subject to the condition that the beneficiary attain the age of 30, that beneficiary’s interest depends on them reaching the age of 30, and is therefore contingent. Whether a beneficiary’s interest is vested or contingent can have different consequences depending on the particular circumstances.

In Spencer v Riesberry, 2011 ONSC 3222 (affirmed in Spencer v Riesberry, 2012 ONCA 418), the Ontario Superior Court of Justice considered the nature of a beneficiary’s interest in a trust. Specifically, in the context of matrimonial litigation, the court considered whether a spouse’s beneficial interest in real property held by a trust could be considered as “property in which a person has an interest” for the purpose of s. 18(1) of the Family Law Act, R.S.O. 1990, c. F.3, such that the property in question could be considered the matrimonial home. If a property is considered to be a matrimonial home, pursuant to s. 4 of the Family Law Act, it cannot be deducted or excluded from the calculation of net family property and can contribute to increasing the owner spouse’s net family property.

In this case, a married couple, Sandra and Derek, had been residing, with their children, in their family home on Riverside Drive. In 1993, Sandra’s mother, Linda, had purchased the Riverside Drive property and settled it in a trust (the “Trust”). Sandra and Derek resided in the residence prior to their marriage in 1994, as well as during the marriage. The couple separated in 2010.

The beneficiaries of the Trust were Sandra, Linda, and Linda’s three other children. Three other properties were added, by gift, to the Trust over subsequent years, and each of these other properties were occupied by one of the other three children and their families.

The terms of the Trust provided that the trustee was to hold the trust property, subject to a life interest in favour of Linda. Upon Linda’s death, the trustee was to divide the trust property into equal parts so that there is one part for each beneficiary living at the date of Linda’s death.

The court considered the nature of Sandra’s interest in the Riverside Drive property in the context of her net family property and whether it could be characterized as a matrimonial home. Due to the terms of the Trust, the court held that Sandra did not have a specific interest in the Riverside Drive property. Although she was a beneficiary of the Trust, which owned the Riverside Drive property, it does not follow that Sandra was specifically entitled to that property in particular. Sandra’s interest in the Trust was characterized as a contingent beneficial interest, as her ultimate entitlement under the Trust depended on various factors. For instance, as the division of Trust property amongst beneficiaries would happen only upon Linda’s death, the assets to be distributed would consist of whatever is held by the Trust at that time. Additionally, the beneficiaries must be alive at the time of Linda’s death in order to receive their share.

On this basis, the Court concluded that Sandra did not have a specific interest in the Riverside Drive property such that it could be considered a matrimonial home. As Sandra was a contingent beneficiary of the Trust, the Court did find that she held an interest in the Trust’s assets generally, which was required to be valued and included as part of the equalization calculations. However, as the interest is not subject to the special treatment given to the matrimonial home, it can be deducted or excluded from net family property, as applicable. Overall, as Sandra’s interest in the Trust’s assets was contingent and not vested, it had a significant effect on the matrimonial proceedings with her spouse.


Thanks for reading and happy holidays!

Rebecca Rauws


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18 Dec

Grosseth Estate v Grosseth: Presumptions of Resulting Trust & Undue Influence

Rebecca Rauws Estate & Trust Tags: , , , , , , , , , , , 0 Comments

In the spirit of the holidays, today I thought I would write about a recent decision related to gifting. In Grosseth Estate v Grosseth, 2017 BCSC 2055, the British Columbia Supreme Court considered whether the presumptions of resulting trust and undue influence were applicable to various inter vivos gifts made by a deceased uncle to one of his nephews. Ultimately, the court concluded that both presumptions were rebutted, and the gifts were valid.

In Grosseth Estate, the deceased, Mort, left a Will providing that the residue of his estate was to be distributed equally amongst his 11 nieces and nephews. However, most of his estate had been gifted to one particular nephew, Brian, and his wife, Helen, prior to Mort’s death. This left only about $60,000.00 to be distributed in accordance with Mort’s Will. One of Mort’s other nephews, Myles, who was the executor of Mort’s estate, brought a claim against Brian and Helen following Mort’s death, seeking to have the money that had been gifted to them by Mort, returned to the estate.

About 10 years prior to Mort’s death, he moved from Alberta, where he had lived most of his life, to British Columbia, where he moved into Brian and Helen’s basement suite. Mort became a full participant in the family; he was included on family outings, attended family dinners every night, and became like a grandfather to Brian and Helen’s children.

For the first couple of years after Mort moved in, he gave Brian and Helen money each month, on an informal basis, as contribution to household costs. Around 2 years after Mort had been living with them, Brian and Helen had decided to purchase a commercial property for Helen’s chiropractic practice. Mort insisted on gifting $100,000.00 towards the purchase price, making it clear that he did not want anything in return. Following this payment, Mort did not make further contributions to the monthly household expenses. The court concluded that there was a tacit agreement amongst Mort, Brian, and Helen that Mort’s generous gift had cancelled any notion that further payments would be required. Several years later, Mort also gifted $57,000.00 to Brian and Helen to pay off the balance of their mortgage.

The court found that the nature of the relationship between Mort, Brian, and Helen gave rise to the presumption of resulting trust as well as the presumption of undue influence. However, both of these presumptions are rebuttable.

The court acknowledged that, with respect to undue influence, Mort did depend on Brian and Helen, but based on the evidence of a number of individuals, concluded that he remained independent and capable throughout. Accordingly, the presumption of undue influence was rebutted.

The presumption of resulting trust was also rebutted as the court was satisfied that Mort intended the transfers to be gifts motivated by “a natural and understandable gratitude to Brian and Helen for the happiness and comfort of his final years.”

It is not uncommon for this type of situation to come up. Where a deceased lived with one niece or nephew (or sibling), or where the niece/nephew/sibling is the primary caregiver prior to the deceased’s death, any gifting that was done in the context of this relationship may be vulnerable to challenge on the basis of resulting trust or undue influence. Unfortunately, in some instances, the relationship dynamics involved in these kinds of arrangements can result in suspect gifts or transfers. Transfers made without clear evidence of an intention to gift can also raise questions. In this case, the court did not find that there was any improper behaviour on the part of the giftees, did find evidence of an intention to gift, and the transfers were ultimately upheld.

Thanks for reading,

Rebecca Rauws


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01 Nov

Five things your clients should do before they die

Ian Hull Estate & Trust, Estate Planning, Funerals, Hull on Estates, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

You advise and document estate plans for clients. You’re meticulous about detail and always do a thorough job. Is there anything you’ve overlooked?

Likely not when it comes to estate assets – but what about the softer, quality of life advice related to the family and estate of your clients? A few actions can not only smooth out the estate settlement process but also enhance the life of your clients today.

Here are five actions that all of us should consider before we die.

Tell your family your estate intentions

We’ve said it before: people can’t read minds and they don’t know what they don’t know. There can be many good reasons for the unequal treatment of family members under a will (such as a disability) but unequal can equate to “unloved” unless it’s explained. Before you put the final touches to your estate documents, let your family members know what you intend to do, and work out any issues now, because you won’t be around to work them out after you’re gone.

Pay for an extended family trip

Travel brings people out of their comfort zone and creates interaction that would otherwise never occur. It may not be all love and honey – family dynamics are what they are – but you may be pleasantly surprised at what happens when your adult children and their families interact outside of their day-to-day lives. The challenge of bringing people together can seem overwhelming, but it’s a challenge worth tackling. It doesn’t have to be an African safari (although those are great if you can afford it). Just make it two nights or longer at a place that’s away from anyone’s family home, cottage or chalet. If they can drop all plans and attend your funeral (they surely will), they can create time for a family trip that mom or dad wants.

Give some gifts during your lifetime

We all know the saying “you can’t take it with you.” As much as we believe it, it can be hard to act on it because we all (secretly) think we’ll live forever. But we won’t, and there’s joy in sharing now. So as the song says, “let it go”, or at least let some of it go. If you have surplus wealth, or surplus assets of value – such as artwork that will never fit in a newly downsized space – you can bring and experience great happiness in sharing things now, rather than after you’re gone.

Record some early memories

You’ve likely experienced this at a family gathering. You tell a simple fact about your early life and someone says: “I never knew you spent a summer in New York City.” It shouldn’t surprise any of us – our adult children can’t possibly know about the 30 or 40 years of our lives before they were born, unless we tell them.

So, record some memories – you’re bound to surprise both them and yourself with what you come up with. You can find some good tips on prompting those memories here: http://www.instructables.com/id/Record-Your-Familys-Oral-History-before-it-dies-/.

Make your funeral intentions known

It’s a hotly debated question: is a funeral for the living or for the dead? In most cases, it’s for both, which is why it makes sense to put some thought into what you envision for your funeral and then talk to your family to work towards a plan that everyone can agree on. There are different levels of pre-planning, both formal and informal, but having the wishes of you and your family documented can go a long way toward a smooth process at a difficult time. For those in Ontario, the provincial government provides a good overview of your rights related to pre-planning with a funeral service provider: https://www.ontario.ca/page/pre-plan-and-pre-pay-final-arrangements.

Thank you for reading!
Ian Hull

05 Sep

What jurisdiction governs the administration of an estate?

Stuart Clark Executors and Trustees Tags: , , , , , , , , 0 Comments

In Tyrell v. Tyrell, 2017 ONSC 4063, the Ontario Superior Court of Justice was faced with a situation in which the testator died domiciled in Nevis, having drafted a Last Will and Testament which was executed in Nevis, which itself dealt with estate assets the vast majority of which were located in Nevis. The Will named the testator’s sister, who normally resided in Ontario, as Estate Trustee. Letters probate were issued to the Estate Trustee from the Nevis court following the testator’s death.

When concerns arose surrounding the Estate Trustee’s conduct following the testator’s death, certain of the beneficiaries brought an Application before the Ontario court seeking, amongst other things, the removal and replacement of the Estate Trustee, as well as an accounting from the Estate Trustee regarding the administration of the estate to date. The beneficiaries who brought such an Application were themselves located across several jurisdictions; being located in Nevis, Ontario, and New York.

In response to being served with the Application, the Estate Trustee took the position that the Ontario court was not the proper jurisdiction to seek such relief as against the Estate Trustee, maintaining that Nevis, being the jurisdiction in which the testator died domiciled, was the proper jurisdiction in which to adjudicate such disputes. The beneficiaries disagreed, arguing that the jurisdiction in which the Estate Trustee was normally resident was the proper jurisdiction in which such disputes should be adjudicated.

In ultimately agreeing with the beneficiaries, and ordering the Estate Trustee to complete certain steps regarding the administration of the estate within 60 days, the Ontario court provides the following commentary regarding Ontario’s jurisdiction over the matter:

For the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee. Therefore, the Will is most substantially connected to the province of Ontario and the applicable law on matters relating to the administration of the Will is the law of Ontario. Thus, the Courts of Ontario have jurisdiction over matters relating to the administration of the Will.” [emphasis added]

The court’s rationale in Tyrell v. Tyrell appears to be in contrast to the Alberta Court of Appeal’s previous decision in Re: Foote Estate, 2011 ABCA 1. Although Re: Foote Estate dealt with a determination of domicile for the purpose of deciding which jurisdiction’s laws would apply in the context of a dependant’s support case, the court provided general commentary regarding what jurisdiction’s laws governed the administration of an estate. Indeed, in the opening paragraph of the Court of Appeal’s decision in Re: Foote Estate, the following comment is made:

This appeal arises from a trial finding that the late Eldon Douglas Foote was domiciled on his death in Norfolk Island. The domicile of the deceased determines the applicable law for estate administration purposes.” [emphasis added]

Re: Foote Estate appears to suggest that it is testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate, making no reference to the location of the Estate Trustee. Tyrell v. Tyrell appears to suggest the opposite, with the court concluding that, notwithstanding that the testator died domiciled in Nevis, the laws of Ontario governed the administration of the estate on account of the Estate Trustee being located in Ontario.

The contrasting decisions of Tyrell v. Tyrell and Re: Foote Estate likely leave more questions than answers. Whether the fact that Tyrell v. Tyrell is a decision of the Ontario court, while Re: Foote Estate is from Alberta (although from the Court of Appeal), could also potentially play a role. An interesting hypothetical would be what would happen if a testator died domiciled in Ontario with an Estate Trustee located in Alberta. In accordance with Tyrell v. Tyrell, notwithstanding that the testator died domiciled in Ontario, the laws of Alberta would apply to the administration of the estate on account of the location of the Estate Trustee. In accordance with Re: Foote Estate however, Alberta law dictates that it is the law of the jurisdiction in which the testator died domiciled which governs the administration of the estate, which could have Alberta send the matter back to Ontario. Confusion abounds.

Thank you for reading.

Stuart Clark

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24 Aug

Submissions from the Joint Committee on Taxation Regarding Proposed Changes to Voluntary Disclosure Program

Rebecca Rauws Estate & Trust Tags: , , , , , , , , , , , 0 Comments

Last month, I blogged about some changes proposed by the CRA to the Voluntary Disclosure Program. It was noted that the CRA would be accepting comments with respect to the proposed changes until August 8, 2017.

The Joint Committee on Taxation of The Canadian Bar Association and Chartered Professional Accountants of Canada (the “Joint Committee”) made submissions in this regard in a letter to the Minister of National Revenue dated August 8, 2017.

In their letter, the Joint Committee recommends that the Minister reconsider a number of points, including, among other things, the introduction of a multi-tier system including the “general program” and the “limited program”. The Joint Committee states that part of the success of the Voluntary Disclosure Program is due to the fact that taxpayers applying to the Program are able, to a certain extent, to predict the consequences of initiating a voluntary disclosure. This allows non-compliant taxpayers to assess the benefits of the Program as opposed to the ongoing uncertainty of non-compliance and the risk of assessment and/or prosecution. The Joint Committee submits that the proposed changes may lead to uncertainty, and therefore, may encourage non-compliance, which would be inconsistent with the objectives of the Voluntary Disclosure Program and with encouraging non-compliant taxpayers to become compliant.

The submissions from the Joint Committee also comment that the draft Information Circular setting out the proposed changes apparently provides that the No-Name method of disclosure, wherein certain information may be provided to a Voluntary Disclosure Program officer without identifying the taxpayer, in order to obtain a better understanding of how the taxpayer’s disclosure may be addressed, will no longer be available for disclosures commencing after December 31, 2017. In the Joint Committee’s experience, non-compliant taxpayers are more likely to proceed with a voluntary disclosure if the process is perceived as transparent and predictable. If they are correct and the Minister of Revenue proposes to eliminate the No-Name disclosure method, the Joint Committee urges the Minister of Revenue to reconsider this proposed change.

The letter from the Joint Committee makes a number of other submissions that are beyond the scope of this blog, but can be read in full here.

Thanks for reading,
Rebecca Rauws


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23 Aug

Assisted dying – follow the rules and you’ll be fine

Suzana Popovic-Montag Estate Planning, Health / Medical, Hull on Estates, In the News, Uncategorized, Wills Tags: , , , , 0 Comments

The past two years have brought a number of changes to the law related to assisted dying in Canada, and Canada now permits medical assistance in dying provided certain criteria are met.

While estate matters aren’t always the priority when dealing with someone who is terminally ill and suffering, they should be considered to ensure that families don’t make a bad situation even worse with unintended estate consequences. And the first step in considering the estate consequences of assisted dying is knowing what you can and can’t do in Canada in relation to assisted dying.

Here’s a quick recap of what’s changed in Canada since 2015.

What prompted the change  

The Supreme Court of Canada ruled in Carter v. Canada [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do] that the parts of the Criminal Code that prohibited medical assistance in dying would no longer be valid.

How the government responded

The federal government followed the Supreme Court ruling by passing legislation in 2016 that allowed eligible Canadian adults to request medical assistance in dying. To qualify for medical assistance in dying, an individual must be 18 years or older and meet the following four eligibility criteria:

  1. Have a serious and incurable illness, disease, or disability
  2. Be in an advanced state of irreversible decline in capability
  3. Endure physical and psychological suffering that is intolerable to them; andhospital room, rules on Assisted dying
  4. Their natural death has become reasonably foreseeable.

They must also be capable of providing informed consent at the time that medical assistance in dying is provided.

Estate planning issue: Would an assisted death disqualify a life insurance payout?

To recap, most life insurance policies won’t pay a death benefit if the policyholder commits suicide within a certain time period after the policy takes effect, typically two years. However, the Canadian Life and Health Insurance Association has said that if someone follows the legislated process for medical assistance in dying, providers would pay out on policies that are less than two years old.

As always though, providers would not pay if an individual misrepresented his or her health when signing the contract, or if the policy specifically exempted the particular illness for which the holder sought a medically assisted death.

Can requests for medical assistance in dying be made in advance?

Advance requests for dying are not permitted. This means that Canadians with conditions like Alzheimer’s or Huntington’s disease that lead to mental incapacity will not be granted the right to consent while they are still of sound mind, as their disease is unlikely to be in an advanced state at that time, nor would their natural death be reasonably foreseeable.

However, some people are drafting clauses in their health care directives and living wills that provide their representative to give consent for assisted dying if they become mentally incompetent and terminally ill in the future. While this has no effect under current laws, the hope is that the law will change and recognize these previously drafted clauses. You can find a good discussion of this issue here:


Is taking someone off life support the same as assisted dying?

It is not. The law is clear that the decision to withhold or withdraw life support where there is no hope of recovery is not assisted dying (it is a natural death), and there are no direct estate implications for those actions.

Estate planning issue: Can a family member, such as a spouse, provide assistance in dying?

A family member can only provide assistance by following the process outlined in the legislation, which involves, amongst other things, a written, witnessed request by the terminally ill individual for medical assistance in dying, and a review of the case by two medical practitioners.

In other words, the spouse or other family member cannot take matters into their own hands – something that could occur if the terminally ill individual is near end of life and suffering, but lacks mental capacity to request assistance in dying. The law in Canada is clear that a person found guilty of committing murder is prevented from inheriting the estate of the victim. Taking steps on your own to hasten someone else’s death, even on compassionate grounds, could be considered a crime and could have estate implications.

For a good summary of end-of-life law and policy in Canada, Dalhousie University provides helpful information on a complex subject: http://eol.law.dal.ca/?page_id=236.

Thank you for reading … Enjoy your day,
Suzana Popovic-Montag

21 Aug

Revocation of Wills: An Overview

Rebecca Rauws Estate Planning, Wills Tags: , , , , , , , , , , , 0 Comments

Today I wanted to discuss a basic, but important concept when it comes to Wills: revocation. There are a number of ways in which a Will can be revoked, and it is crucial that everyone with a Will, or who will make a Will in the future, understands what those methods are, and the requirements that must be met in order to successfully revoke a Will. An incomplete understanding of revocation can lead to unintended consequences if a testator mistakenly believes either that a prior Will has been revoked, or that a prior Will that he or she believed to have been revoked, remained valid and operative.

According to section 15 of the Succession Law Reform Act, R.S.O. 1990, c. S.26,

15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.

Ontario has a strict compliance regime, meaning that the statutory requirements for actions such as executing and revoking a Will must be followed carefully, and that the courts do not have the discretion to declare a document valid that does not do so. Accordingly, if an attempted revocation of a Will does not strictly comply with the statute, it may not be valid.

For instance, one method of revoking a Will is by a writing declaring an intention to revoke and made in accordance with the requirements of the making of a Will. This means that, even if the document revoking the prior Will is not itself a Will, it must nonetheless comply with those requirements, whether it be a formal Will witnessed by two people, or a holograph Will. A testator who does not seek legal advice on revoking his or her Will may mistakenly believe that, for example, a typewritten signed statement would validly revoke a Will, when, in fact, it would not.

Destroying a Will, another method of revocation, must also be done in a particular way to satisfy the requirements of the Succession Law Reform Act. As discussed in Probate Practice (5th ed.), the two elements of destruction and intention to revoke must both be present. The destruction itself must also be done either by the testator personally, or by someone else in the testator’s presence and by his or her direction. Therefore, even if the testator directs another person to destroy his or her Will, if the testator is not present at the time of such destruction, it will be insufficient to revoke the Will in question.

Additionally, the requisite capacity to revoke a Will is the same as that required to execute a Will in the first place.

While this blog only briefly touches upon a few specific issues that may arise in relation to revoking Wills, it is clear that without a proper understanding of how to validly revoke a Will, a testator can easily stray offside of the statute, resulting in a potentially invalid revocation. As with the execution of a Will, revocation can also have significant effects on a testator’s testamentary dispositions, and it is important to seek advice from a trusted legal professional prior to taking any steps that may lead to unintended, and unfortunate, consequences.

Thanks for reading,

Rebecca Rauws


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19 Jul

A Tale of Two Countries – Trusts in the U.S. and Canada

Suzana Popovic-Montag Beneficiary Designations, Estate & Trust, Estate Planning, Hull on Estates, In the News, Uncategorized Tags: , , , , , , 0 Comments

They love football, we love hockey. Their zee is our zed – and their Trump is our Trudeau. While we share a common border with the U.S., there are many differences between our two nations – and the reasons for setting up a trust can differ significantly by country as well.

The U.S. has a high estate tax for wealthy individuals – up to 40% on assets, with the first $5.5 million or so exempt. Not surprisingly, trusts are used aggressively in many situations to reduce estate values and minimize this estate tax as much as possible.

In Canada, there is no estate tax per se – although there is an estate administration tax (probate fee) in some provinces and there are often taxes payable on capital gains. But with no capital gains taxes on principal residences, the need for trusts as part of U.S.-style estate planning simply isn’t there.

This doesn’t mean that trusts aren’t a valuable planning tool in Canada. They can still be used to shift income from higher-taxed family members to those in lower tax brackets, or to provide dedicated funding for dependants, such as a disabled spouse or child, or as means of creditor protection amongst many other reasons. But there’s a kinder, gentler push behind trust planning in Canada, owing to the less punitive (in most cases) taxation of estates here.

This Globe and Mail article provides a good overview of the many potential uses of trusts in Canada today, and why a more aggressive approach isn’t needed here: https://www.theglobeandmail.com/globe-investor/personal-finance/a-tax-tool-thats-not-just-for-trust-fund-babies/article22996097/

The complexities of cross-border beneficiaries

Trust issues can be clean and tidy in Canada and the U.S. when everything about a trust stays fully north or south of the border. But what happens when trust worlds collide?

In short, it can get complicated, and specialized planning is often needed to avoid additional taxation. While avoiding a cross-border trust arrangement is one way around these issues, avoidance isn’t always possible, such as when a Canadian trust is settled with a Canadian beneficiary, but that individual moves permanently to the U.S. and becomes subject to U.S. tax laws.

This Collins Barrow advisory offers a more detailed discussion of some of the cross-border issues relating to Canadian/U.S. trusts: http://www.collinsbarrow.com/en/cbn/publications/u.s.-citizens-and-canadian-trusts.

Thank you for reading … Have a great day!
Suzana Popovic-Montag


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