A recent article featured in the New York Times highlights the need to reconsider estate planning strategies in light of developments in the law of inheritance taxation.
As our blog has previously reported, during his presidential campaign, Donald Trump vowed to eliminate inheritance taxes, then payable on the value of American estates exceeding $5.45 million, altogether. To the disappointment of many wealthy citizens of the United States, President Trump has not carried out his promise and, while the exemption has been increased, inheritance tax remains payable in the United States in respect of estates of a size greater than $10 million.
The New York Times reports that these changes to the exemption in respect of inheritance taxation are temporary in nature and that the measures currently in effect will expire in 2026. At that time, Americans (and individuals who hold property of significant value in the United States) may need to amend their estate plans with a view to tax efficiency.
Gifts, including testamentary gifts, are not typically subject to taxation in Canada. While there is no Canadian estate or inheritance tax, assets that are distributed in accordance with a Canadian Last Will and Testament or Codicil that is admitted to probate will be subject to an estate administration tax (also known as “probate fees”). Many of our readers will already be aware of the relatively new requirement (as of 2015) that estate trustees in Ontario file an Estate Information Return with the Ontario Ministry of Finance within 90 days of the processing of a probate application. In some circumstances, details regarding both traditional estate assets and assets typically considered to pass outside of the estate are required, notwithstanding that the latter category may nevertheless be exempt from probate fees. Some anticipate that the law in Ontario may at some point be amended to require further details regarding assets passing outside of an estate in Estate Information Returns and/or the payment of estate administration tax or other fees in respect of these assets. Like variations in the exemptions to American inheritance tax, changes to estate administration taxes may in the future necessitate amendments to existing estate plans with a view to limiting the taxes payable on the transfer of wealth.
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Related blog posts that may be of interest:
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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Tis the season of goblins and ghouls, of ghosts and gremlins, when the boundaries between the natural and supernatural become ever so slightly blurred. Pure fiction, no doubt…or is it? Well, yes, most likely. However, as Mark Twain famously opined, truth can often be stranger than fiction. Consider the following story that’s part Dr. Jekyll and Mr. Hyde and part Twilight Zone, one that presents a curious scenario to the estate litigators among us.
Lawrence Bader was a salesman from Akron, Ohio. One afternoon in May 1957, Mr. Bader rented a boat to go fishing on Lake Erie and told his wife that would be back later that evening. A few days earlier, Mr. Bader had recently designated his wife as a beneficiary on several life insurance policies totaling approximately $40,000.
Severe storms engulfed the area the night of Mr. Bader’s expedition, and he did not return home as promised. The following morning, the Coast Guard discovered his empty fishing boat, bruised and battered by the storm and washed up on shore miles from where he had departed. There was no sign of Mr. Bader. He was presumed “lost at sea.”’
In 1960, following an application from his wife, the probate court in Summit County, Ohio declared Mr. Bader legally deceased. Similar authority is granted to courts in Ontario. The Declarations of Death Act allows an “interested person” to apply to the court for an order that an individual has died if the individual “disappeared in circumstances of peril” and the applicant has “no reason to believe that the individual is alive.” Accordingly, Mr. Bader might reasonably have been declared deceased by an Ontario court under similar circumstances.
The intriguing tale of Mr. Bader’s whereabouts does not end there, however. In 1965, more than five years after he was declared legally deceased, a friend of Mr. Bader’s was attending a sports convention in Chicago and encountered an archery enthusiast who bore an uncanny resemblance to Mr. Bader. In an almost clichéd homage to classic horror and science fiction, the doppelganger purportedly wore an eyepatch and sported a mustache.
The doppelganger introduced himself as Fritz Johnson, a media personality from Omaha, Nebraska. After speaking to him over the phone at the insistence of the friend, Mr. Bader’s brothers flew to Chicago to meet the man they firmly believed was their brother. However, the doppelganger appeared to have no memory of his wife and family, his seafaring escapade, or indeed any details of his former life.
Mr. Johnson had purportedly arrived in Omaha only a few days after Mr. Bader had disappeared. In the years since his apparent alter-ego was declared legally deceased, Mr. Johnson married, fathered a son, became a newscaster, and developed a talent for archery. Curiously, Mr. Bader’s brothers confirmed that he had been regarded as a skilled archer prior to his disappearance.
To Mr. Johnson’s dismay, the authorities confirmed by way of a fingerprint analysis that Mr. Bader and Mr. Johnson were indeed one and the same, notwithstanding that the latter apparently had no memory of the former. They surmised that the entire ordeal was merely an attempt by Mr. Bader to get a fresh start, free of debts and obligations, under a new identity. While this story is likely more hucksterism than it is Hitchcock, there are useful points to discuss.
As estate litigators, our primary area of interest with respect to the Bader-Johnson conundrum would, no doubt, pertain to the distribution of Mr. Bader’s estate. In particular, it is worth discussing what happens to the estate of an individual who later turns up alive, especially if distributions in accordance with a will, for example, had been made prior to his return. For those of us who don’t anticipate an undead doppelganger reappearing to cause turmoil for our estate trustees, the approach is fairly streamlined.
Ontario’s Declarations of Death Act provides a mechanism whereby the court can order that the property of an individual, who was declared deceased by the court, be returned to them if they later turn up alive. Section 6(1) of the Act provides that all distributions out of the estate of an individual who is declared deceased thereunder are final distributions, subject to certain considerations. One such consideration, under section 6(3), provides that a court may make an order requiring the beneficiary to re-convey to the deceased all or part of any property distributed to him or her “if it is just to do so”. In other words, a beneficiary of the estate of a now-undead person that has received a distribution out of that estate may be ordered to return all or part of it.
Despite Mr. Johnson’s insistence to the contrary, there was substantial evidence to support that he was, in fact, Mr. Bader, even though he purportedly had no memory of him. While he ostensibly returned from the dead under a pseudonym and having suffered a bout of amnesia, neither are factors that an Ontario court would likely consider in determining what would happen to his estate.
On Thursday, we will look at similar provisions under Ontario’s Absentees Act.
Thanks for reading. Happy Halloween!
A common problem encountered in estate administrations is locating a testator’s will. Many executors and next of kin do not know where to find the testator’s will. There are even instances where the testator cannot remember where he or she stored their original will for safe keeping.
A potential solution to this problem is a will registry. A will registry is a useful tool designed to assist parties in locating the testator’s will. A quick search of the registry can confirm whether an individual died testate or intestate. It also has the potential to reduce both the time and expense associated with searching for a missing will and the added cost of proving a lost one.
Recently, the County of Carleton Law Association, with support from the Federation of Ontario Law Associations, launched an online wills registry called Will Check. Will Check is run by the County of Carleton Law Association Library. Will Check stores information about the lawyer or firm where the will is being kept but it does not store the actual will. Searches of the database can only be performed by members of the Law Society of Upper Canada. At this time, only lawyers practicing in the Ottawa area can submit wills information to Will Check.
Will Check is not the first wills registry in Canada. The province of British Columbia has a wills registry maintained by the Vital Statistics Agency. In B.C., applicants file a Wills Notice. A Wills Notice contains the location of the will and can be filed by lawyers, notaries, trustees or individuals over 19 years of age. Like Will Check, the registry does not keep an actual copy of the will – only confirmation that one was made, when it was made, and where it is located.
A similar system exists across the pond in the United Kingdom. A private business called Certainty operates an online national wills register. The website is endorsed by the Law Society in the UK. Approximately seven million wills are included in the database.
In the United States, each state has its own approach to will storage. For example, the state of Alaska allows you to deposit your will with the court, and after the testator dies the will becomes a public record.
Will Check could be the solution to the problem of the missing will. Identifying the location of a testator’s will can save on costs and time and provide a testator with the added peace of mind that his or her wishes will be carried out. Even without a registry, testators should consider advising their executors regarding the location of their will. This way, they can take comfort in knowing that their will can be found.
Thank you for reading … Have a wonderful day.
An unsent text message found on the deceased’s mobile phone has admitted to probate bythe Supreme Court of Queensland.
In Re Nichol; Nichol v. Nichol  QSC 220 (9 October 2017), the deceased created a text message on his phone. It was addressed to his brother and nephew, but was not sent. The deceased then committed suicide. The phone was found by the deceased’s brother in the shed where the deceased’s body was found.
The text message read as follows:
“Dave Nic [the deceased’s brother] you and Jack [the deceased’s nephew] keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie [the deceased’s estranged wife] will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten . A bit of cash behind TV and a bit in the bank Cash card pin 3636
MRN190162Q [the deceased’s initials and date of birth]
At the end of the text message was a paperclip and a smiley face emoji.
The court reviewed the relevant Queensland statute, which allows a court to accept an unsigned document to probate. The legislation requires that the court be satisfied that the deceased intended the document to form the person’s will. In considering whether to do so, the court will need to be satisfied that the deceased’s intention was that the document should, without more, operate as his or her will.
The court noted that “great care” is to be taken in evaluating the evidence. More is required than simply showing that the document sets out testamentary intentions. The evidence must show that the deceased wanted the document to be his or her final will, and did not want to make any changes.
With respect to being a “document”, the court relied on the definition of “document” in the Acts Interpretation Act, which includes electronic documents. The court also referred to the case of Re Yu, where documents created on an iPhone were found to constitute a valid will.
The court reviewed extensive evidence about the deceased and his relationships with the parties, as well as evidence as to his capacity.
With respect to the argument that the text was not sent and therefore, the deceased did not want it to be operative as his last will, the court found that the deceased did not send the text because he did not want to alert his brother to his suicide, but wanted the text message to be discovered when he was found.
In Ontario, such an outcome would not be possible. The Succession Law Reform Act requires that, with respect to a typewritten will, it must be executed by the testator (or some other person in his or her presence and by his or her direction) in the presence of or acknowledged in the presence of two or more witnesses, and signed by two or more witnesses in the presence of the testator. With respect to a holograph will, no witnesses are required, but the will must be wholly by the testator’s own handwriting and signature. There is no “saving provision”, such as that found in the Queensland legislation, or “substantial compliance” provisions.
Interestingly, the Queensland court did not comment on the significance or lack of significance of the smiley face emoji. Neither the Queensland legislation nor the Ontario legislation legitimizes wills signed with a J.
Have a great weekend.
In this day and age the priorities for one’s home are changing. Generally, people want to live a happier, healthier and “greener” lifestyle.
I recently came across the blog “Rethink. Reclaim. Remain.” written by Sam and Ryan McLaughlin, who are attempting to do just that. The parents of two, with one more on the way, are renovating their home while keeping three things in mind: “living happily, healthily, and considerately on this planet.”
One problem faced by many young families is how to fit everyone under one roof. The McLaughlin family sought to create the space they needed to accompany their growing family by building an addition to their current home using environmentally friendly and reclaimed materials.
The blog examines how to prioritize not only your time, but your resources. The McLaughlin’s wanted their home to reflect the ideas of sustainable living. To achieve this, they plan to repurpose and reuse viable components and materials. Their design plans incorporate both natural and reclaimed materials into the flooring, structure, finishes and furniture of the new addition. This includes reclaimed factory decking, exposed spruce joists, and reclaimed steel beams.
The environmental movement has seen a surge in recent years. The trend towards “going green” has spread from redesigning office spaces into remodeling homes. The McLaughlin’s blog is one family’s journey to transform their current home into an eco-friendly forever home.
Like every home renovation show on HGTV, not everything goes according to plan. The blog highlights some of the do’s and don’ts for Do It Yourself (DIY) home renovations and when it might be time to call in the contractors.
For those of you who are interested, I highly recommend reading the McLaughlin’s blog and checking out their renovation plans.
Thanks for reading!
A “power” is an authority to act, whereas a “duty” is an obligation. A duty of an estate trustee compels her to act, or prohibits her from acting in certain situations. A power, on the other hand, allows her to act in a certain way, subject to her discretion.
An estate trustee faces potential personal liability from unauthorized actions in the administration of an estate. Although, generally a will prescribes specific powers and duties for an estate trustee when it comes to the administration of the estate, there may also be a situation which the will simply does not contemplate.
As an estate trustee, or even as a beneficiary under such a will, how does one assess what an estate trustee can and cannot do?
The Trustee Act, RSO 1990, c. T23, as amended, is helpful in determining what an estate trustee’s powers and duties are, in the absence of a clear direction from a will.
It is not unusual for an estate trustee to be given discretion with respect to the exercise of administrative powers conferred to manage the estate. However, she may also be given the authority to allocate estate property to the beneficiaries. That kind of power is referred to as dispositive power or discretion and may require an estate trustee to do such things as, divide income and/or capital between beneficiaries at a time of her choosing.
Generally, the powers of an estate trustee will depend on the specific nature of the estate. For example, if the estate consists of property that is to be administered as an investment, the estate trustee will likely be allowed a power of sale, a power to mortgage, and a power to lease. The estate trustee must have the power to keep the property intact as well as meet all financial claims of third parties. An estate trustee will also generally have the power to insure any real property, against loss or damage.
With respect to expenses related to the estate, the estate trustee who believes that an expense is properly incurred, may either pay for it directly from the estate property or pay for the expense personally and later recover the corresponding amount. It is important to note, however, that a court may later disallow an expense if it concludes that it was not properly incurred.
In exercising each power that the estate trustee might have, she must keep in mind that there are certain duties that limit her powers.
- If a power of sale is to be exercised, she cannot delegate it to a third party and later escape responsibility in the event that there is an issue, on the ground that she did not choose the purchaser.
- An estate trustee cannot sell a property to herself, a beneficiary, or a third party with the agreement that she will then re-purchase the said property.
- If the estate trustee sells the trust property, not only must she be honest, but also show a reasonable level of care and skill in her conduct, throughout the transaction. For example, she should not convey title until payment is received, and if she does do so and there is a resulting loss to the estate, there may be personal liability.
An estate trustee with significant discretion in administering the estate can certainly be put in a difficult position with respect to how such discretion is to be exercised. Unfortunately, there are few guidelines available on that end, short of exercising one’s own good sense.
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Estate Trustees’ Standard of Care
High net worth individuals typically have more than enough money to live their desired lifestyle. But there’s an important element that even the wealthiest amongst us may be lacking – protection. According to recent research by Chubb, more than 50% of high net worth individuals worry that they are underinsured, and less than 30% look for insurers who are specialists in providing coverage for the affluent: https://www.canadianunderwriter.ca/personal-lines/insurance-providers-need-go-understand-needs-high-net-worth-individuals-chubb-1004110295/.
The simple fact is that those who have more, have more to lose. And they have assets and protection needs that go far beyond what an off-the-shelf property and liability policy can provide. Uncovered losses not only have day-to-day lifestyle implications, they could also impact estate values down the road.
Here are some of the coverages available in the Canadian market that high net worth individuals should consider.
- Coverage for high-end homes – As technology advances, home systems have become more sophisticated, and higher-end homes even more so. Assets and equipment that need protection can include state-of-the-art electrical and mechanical systems. back-up generators, pools, home theatres, climate-controlled wine systems, walk-in humidors, and showcase garages. These homes may also have unique architectural detailing that requires special protection.
- Personal security breach protection – Wealth and a higher public profile comes with its own risks – home invasions, stalking, violent threats, even kidnapping. Specialty insurance packages cover expenses related to these events, from loss of income to professional counselling, to additional security services.
- Protection for collectibles and leisure vehicles – An affluent lifestyle often includes vehicles that go beyond basic transportation needs. These can include antique, classic and collector cars, airplanes, speed boats, houseboats and yachts, and other recreational vehicles.
- Increased liability protection – The higher your public or professional profile, the greater the risk of liability claims, with libel, slander or defamation claims being an obvious example. Higher-end insurance policies often include worldwide umbrella liability coverage that extends the range of liability protection available.
This recent Globe and Mail article highlights some other protections that those with an affluent lifestyle might consider: https://beta.theglobeandmail.com/globe-investor/globe-wealth/high-net-worth-lifestyle-brings-liability-tripwires/article34019994/?ref=http://www.theglobeandmail.com&.
Many insurance companies in Canada – such as Aviva and Chubb – offer exclusive protections and services for the high net worth market. An insurance broker can be invaluable in helping you find the right solution.
Thank you for reading!
Let’s say that you are an estate trustee of a trust, or a beneficiary of a trust. The trust consists of investments. How can you be sure that the investments are performing adequately?
A new product from Asset Risk Consultants will allow you to make a quick check of the performance of the investment portfolio.
“Performance QuickCheck” allows you to enter information about the portfolio, and will immediately compare its performance to 130,000 portfolios having similar risk across five major currencies.
To conduct the check, users pick their currency (currently, British Pounds, US dollars, Euros, Swiss Francs or Canadian dollars), and the percentage of the fund invested in equities (allowing the comparison to be made based on the risk assumed by the trust: either cautious, balanced, steady growth or equity risk). The program then asks for the period over which the portfolio was held, and the percentage return over the period.
The program will then compare your investment return to other portfolios having similar risk.
For example, a Canadian portfolio holding 30% equities producing a 7% return for the period from June, 2016 to July 2017 will result in a smiley green face, indicating above average performance. However, a Canadian portfolio holding 80% equities producing a 7% return for the same period will result in a sad red face, indicating below average performance. As suggested by the website, trustees may want to ask their investment manager for a comment, or consider another investment manager. Beneficiaries may want to speak to the trustee, or legal counsel.
A more comprehensive report is also available, for a fee of £25.
Performance QuickCheck from Asset Risk Consultants is a great, easy to use, free tool to allow you to quickly ask and answer, “How am I doing?”.
Have a great weekend.
Have you seen the recent Home Hardware ads, where an adorable young couple tackles a complete home renovation on their own? It’s hard not to root for them. But while the do-it-yourself attitude is admirable, there are some things in life where professional help is needed, and estate planning is one of them. Estate planning mistakes aren’t easily fixed, especially since they might not be discovered until you’re gone. Here are a few reasons why professional help is important.
An objective voice on family dynamics
The influence of family relationships on your plan is greater than any other factor. Who gets along with whom? Who has special needs? Should estate assets be owned jointly by all beneficiaries, or sold? Who do you trust to manage your estate?
That’s where a professional can help. You’re caught up in family dynamics, whether you like it or not. And an objective voice can do wonders for quieting the family voices you hear and providing some clear advice to help you arrange your estate in a manner that reflects the unique dynamics of your situation.
They can also help you communicate your plan to your family during your lifetime, to minimize estate conflicts later. Trust me, we’ve seen it all. If there are issues within your family now, you can be certain they won’t be any better once you’re gone. The more you can do to communicate your estate plan and listen to family members and address concerns during your lifetime, the smoother the estate settlement process will be.
They see things you haven’t thought of
An estate plan doesn’t have to be complicated, but all good plans have one thing in common – they cover all the angles. The mistakes in estate planning often relate to what isn’t in the plan rather than what is.
One of the key benefits of planning with a professional is the use of a methodical approach to cover off the key elements that pertain to your estate, whether related to business, your children from a previous marriage, beneficiaries, or assets in other jurisdictions.
The coordination of beneficiary designations for insurance policies and registered plans is a great example, because it’s a commonly missed item. These policies and plans may have been put in place over many years, with designations that no longer reflect your desired division of assets.
You have a role too
While professional advice is an essential element of a solid estate plan, your input is obviously an important part of it. And the more you know about the estate planning process, the more value you bring to the table. This recent Globe and Mail article highlights three estate planning books you might want to read to learn more about the process and the elements of your estate plan that you may not have considered:https://www.theglobeandmail.com/globe-investor/globe-advisor/beyond-the-beach-read-estate-planning-books-for-canadians/article35981401/.
Thank you for reading,