Approximately 7.5 million people came to Canada through immigration, according to the 2016 Canadian census. Among these, almost every country in the world is represented, big and small. Countries of origin include places like; Philippines, India, China, Italy, France, South Korea, Germany, the United Kingdom, and the United States among others. A lesser number arrived from Lithuania, itself a smaller country on the Baltic Sea with a population today of about 2.8 million. Currently, about 60,000 Canadians claim Lithuanian ethnic origin. As a result of the relationships between families in the two countries, international inheritance law questions can arise. There can be beneficiaries named in wills who reside in the other country, or heirs to be located in the case of an intestate deceased.
According to Lithuanian law, acceptance of an inheritance is a very important legal act. This is a procedural step that a Canadian lawyer would likely observe with some curiosity. A beneficiary with a “testamentary reservation” as well as any other testate or intestate heir has to “accept” the inheritance. The law establishes a very short term of three months for doing this. Therefore, the heirs have to be very careful in order not to miss the term or must then turn to a court requesting an extension. The beneficiary of the testamentary reservation must inform the executor of the will of the acceptance, or the notary public of the place of succession. In the event where the testamentary reservation includes a right to real estate, then acceptance in all cases must be filed with the notary public. The notary issues a “certificate of the right to inheritance” and the testamentary reservation must be registered in the Public Register.
Testators have the right to place obligations, like when real estate or a private enterprise is devolved to another person for use during their life, or the revenue derived from that property. In the event where the testator establishes maintenance for somebody without specifying exact terms, then that person is generally entitled to board, accommodation, clothing and medical care. Those who study are entitled to have their study expenses paid during the duration of their study, but not longer than the age of twenty-four.
Currently, there are several litigation cases on the issues of testamentary reservation in Lithuanian courts. In the last 10-15 years there are now more Lithuanian wills containing provisions with testamentary reservations. However, some reservations are not allowed. For example provisions in a will that violate laws, like requiring: becoming a member of a particular organization in order to receive an inheritance, graduating from a particular college, or even a requirement to marry the testator’s daughter in order to receive the inheritance. Any such provisions, which, violate human rights and the Constitution, are considered null and void.
If you are interested in further information on the topic of international inheritance we are please to assist, along with our lawyer colleagues in Lithuania who have contributed to this blog.
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Robert Gordon Price began the practice of law in the small northern Ontario mining community of Kirkland Lake in 1952 when he joined his uncle Bruce Williams, and the Williams and Price law firm had its beginning. Bob, as he was known to friends and colleagues would practice law for over 65 years until his passing in Toronto on November 26, 2017 at the age of 92.
In or around the time Bob began practicing law, the International Law Commission began working on the issue of diplomatic and consular relations. After more than ten years of international preparations and after a discussion on the draft articles, countries proceeded to a Conference on Consular Relations, which was attended by delegates of 95 states. The Conference adopted the Vienna Convention on Consular Relations which was signed on 24 April 1963 and came into force on 19 March 1967. Article 37 provides that a country must “without delay” notify consular officers if a person dies while away in another country or has a guardian or trustee appointed over him or her. From this, certain international obligations would flow.
Around the same time, a miner, who was originally from Poland, died in Kirkland Lake. He died without a Will and his family in Poland had to be identified, located, and contacted. Arrangements were made in regard to the funeral, the body, and the estate. No one was quite sure how to proceed given the new treaty obligations, but the Polish Ambassador was put in contact with Bob. For Bob, it was a beginning of a niche law practice on international estates inheritance and heir locate in over 15 countries. Bob soon developed a practice where he was involved with almost all estates in Canada with a connection to Eastern Europe and the Soviet Union.
Part of Bob’s legacy are the international relationships that he built over many years. As international relations between countries continue to evolve and change, the relationships Bob established are even more important today.
Today, Hull & Hull LLP is working with Bob’s former colleagues around the world by assisting clients in solving complex and difficult problems involving international estate inheritance matters.
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The Global Private Wealth Guide includes a chapter for nineteen different countries and features practical information regarding tax issues, succession law, the status of trusts, business and charitable planning, and the role of fiduciaries in each jurisdiction. The Guide also features a profile page for each country, in which general information related to relevant business practices is summarized.
The Private Wealth Guide is a helpful tool for lawyers assisting clients who may hold property or business interests in multiple jurisdictions. Among the interesting features of the website for the Guide is the option of comparing the treatment of each issue between two or more jurisdictions. For example, it offers the opportunity to obtain quick and reliable information regarding any differences between the treatment of marital property in Canada and the United States.
A complete electronic copy of the guide is available here. A link has also recently been added to the resources section of our website.
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Through the use of modern technology and communication, the world is shrinking every day. We are seeing an influx of foreign residents living and owning property situated in Canada and the reverse is also common.
For the purposes of estate planning and administration, the domicile of Canadians living or owning assets in other jurisdictions is an important consideration. A deceased’s domicile is important because it is the first step towards deciding how to administer the estate.
Generally, one’s domicile of origin is where they are born, while domicile of choice is when someone takes up residence in a new place, intending to reside there permanently. Domicile of choice can be abandoned.
Re Foote Estate is a case out of Alberta, upheld on appeal, providing direction to courts dealing with domicile in uncertain cases. Although Mr. Foote (the deceased in that case) was born in Alberta and resided there for the first half of his life, he also purchased a home in British Columbia at one point and eventually built and resided at a residence on Norfolk Island, a remote location (and former penal colony) in the South Pacific.
The issue in the case was which jurisdiction’s law should govern the administration of Mr. Foote’s estate. The court was tasked with determining whether Mr. Foote had embraced a new domicile by choice (Norfolk Island), and, in turn, gave up his domicile of origin (Alberta), as individuals are only permitted one domicile at a time. If so, the court had to then assess whether Mr. Foote abandoned his Norfolk Island domicile when he returned to Alberta for medical treatment, where he eventually passed away.
The test for changing one’s domicile requires that a person acquires residence in a jurisdiction with the intention of settling there permanently and indefinitely. The Alberta Court of Appeal upheld the Trial Judge’s finding that Mr. Foote was domiciled in Norfolk Island at the time of his death.
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Once in a blue moon I find myself considering and marveling at the genius and breadth of the Common Law. I am amazed by the Common Law’s ability to function effectively in what otherwise appear to be remarkably different parts of the world, particularly in the area of Estates and Trusts.
Of course, this phenomenon is a historical after-effect of the size and reach, particularly in the 17th to and 19th Centuries, of the British Empire. Military history buffs will know this was largely attributable to the Royal Navy’s increasing dominance over the oceans of the world. During that time (and before), the Common Law spread from the relatively tiny islands of the UK to vast and diverse areas: from India, Hong Kong, parts of Africa and Singapore to tiny island states in the Caribbean such as Barbados, the list goes on and on.
No doubt Estate Law has its local variants in each location, but I am more often than not struck by the similarities. The attached article about Wills and Probate in Hong Kong would not be much different in Ontario, and I expect most non-lawyers would be hard-pressed to spot the differences. Here’s a website encouraging people to outsource legal services to India, including trust deeds, although to my mind that may exaggerate the cross-jurisdictional similarities of Estates law. It seems to me it would still be best to retain a local lawyer in whatever jurisdiction you’re dealing. For the truly exotic, review this website talking about how the governing Estate law in Singapore shifted from the Common Law to Islamic law.
With Canada’s direct reliance on British jurisprudence lasting until 1949 when final appeals to the Judicial Committee of the Privy Council were ended, we certainly have played our role in this pattern and continue to do so.
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