Tag: Justin de Vries
Mr. Justice Brown presented a paper at the recent OBA CLE Seminar Emerging Trends in Estates and Trusts: What Does the Future Hold? Mr. Justice Brown’s paper was adeptly titled One Judge’s “Wish List”: Best Practices on the Estates List. Mr. Justice Brown sits in Toronto and is a member of the Estates List. In one section of his paper, Mr. Justice Brown wrote as follows under the heading “Who is your audience?”
“In Toronto the Superior Court of Justice operates an Estates List. Each week one judge is assigned to sit exclusively on the Estates List and another judge is available for the last three days of the week if the need arises. Estates List judges are drawn from one of the two Toronto civil teams or, occasionally, from the civil long trials team. Usually newly appointed judges are assigned to a civil team for their first year on the bench. As a result the judges who hear matters on the Estates List more likely than not will come from a civil or commercial litigation background, but will not necessarily possess specialist training in estates or trusts.
Anne Werker recently brought an interesting case to my attention. In Rooney Estate v. Stewart Estate, the solicitor who performed the executor’s duties attempted to rely on a release signed by a beneficiary in his response to an application that he pass accounts in his capacity as de facto trustee.
Pierce J. held that in order for a release to be enforced, the beneficiary who signs the release:
1. must be “fully informed”;
2. must have received competent legal advice in a review of the accounts;
3. should understand how compensation has been charged; and
4. should know what legal services have been provided and what the fees were.
Pierce J. also held that a distribution cannot be withheld pending the execution of a release. It is simply fiction for an executor to believe that he/she can refuse to distribute the estate until a signed release is in hand. A holdback must be reasonable and demonstrably justifiable in the circumstances (i.e. tax liability or the costs of a passing).
However, in the end, some common sense must prevail. In a simple administration, it is unlikely that formal accounts will be prepared for passing either because no compensation is claimed or the costs of doing so are prohibitive. However, the executor will likely ask for a release on the distribution of the estate. In that case, transparency may be the answer. By communicating regularly with the beneficiaries, sending them pertinent information and updates, and/or preparing an informal accounting (including how compensation has been taken), a court may just be convinced that a signed release is good enough.
 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650
Whether voluntary or mandatory, mediation is now a common occurrence in estate and trust litigation. Much has been written and blogged on the subject. I therefore thought it worthwhile to comment on the changing nature of the plenary session from a practioner’s point of view.
Traditionally, the plenary session brought the parties and their counsel together at the outset of the mediation so that the mediator could review the ground rules or “rules of engagement”, discuss the benefits of reaching a mediated settlement, and touch upon role of the mediator during the process. Counsel were then invited to present their client’s case usually adopting an adversarial stance and focusing on a “rights-based” approach to the mediation. Next up were clients who, understandably, often became angry or confrontational.
However, plenary sessions have largely changed. It is now widely recognized that allowing counsel and parties to make opening statements only inflames the situation and places the focus on what divides the parties rather than what unites them. Consequently, the mediation is off to a poor start and the mediator spends considerable energy unwinding the newly minted ill-will.
Welcome to my week of blogs.
Tax season is once again upon us with all of its attendant trepidation. No doubt, a general panic has set in as people gather together the necessary documentation to fill out and file their tax returns.
Anybody who has been an estate trustee will know that he/she is responsible to prepare and file a terminal tax return and to ensure that any outstanding taxes are paid on time. To help cut through the confusion, I thought it worthwhile to set out some of the income/deduction tax receipts that an estate trustee may come across when preparing a tax return:
Ø T4 Employment Income
Ø T4A Pension/Annuity Benefits, Canada Pension Plan Benefits
Ø T4A(OAS) Old Age Security Benefits
Ø T4RIF Registered Retirement Income Fund Withdrawals
Ø T4RSP Registered Saving Plan Withdrawals
Ø T4PS Contributions by a Company to Profit Sharing Plan
Ø T600 Cash Canada Savings Bonds
Ø T4E Employment Insurance Benefits
Ø T5 Investment Income
Ø T3 Trust Income (including mutual funds and income trusts)
Ø T5008 Statement of Securities Transactions
Ø T5013 Statement of Partnership Income
Ø T2200 Declaration of Conditions of Employment
Ø T2201 Disability Tax Credit (completed by a doctor)
Ø T2202 Tuition/Education Deduction Certificate
Ø T101 Statement of Renounced Resource Expense
Ø T5006 Labour Sponsored Tax Fund Credit, RRSP Contribution, Union and Other Professional Dues, Medical or Attendant Care Expenses, Charitable Donations, Political Donations, etc.
Thank you for reading, Justin.