Tag: Life Insurance
Today on Hull on Estates, Natalia Angelini and Doreen So discuss life insurance policies, separation agreements, and the limits to section 72 of the Succession Law Reform Act in Birnie v Birnie, 2019 ONSC 2152.
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Earlier this year, we argued the appeal in Moore v Sweet before the Supreme Court of Canada. On Friday, the Court released its decision, which has provided what, in our view, was necessary clarification of the juristic reason component of the test for unjust enrichment. The Supreme Court has also confirmed the circumstances in which a constructive trust remedy is appropriate within the context of unjust enrichment. Our firm was pleased to argue the appeal at the Supreme Court in February 2018 and to learn on Friday of our client’s success in the reversal of the split decision of the Ontario Court of Appeal.
The facts of the case were relatively straightforward: The appellant had previously been married to the deceased. Around the time of their separation, the appellant and the deceased entered into an oral agreement whereby the appellant would remain the designated beneficiary for the life insurance policy on the deceased’s life on the basis that she would continue to pay the related premiums. The appellant paid the premiums on the life insurance policy until the deceased’s death approximately 13 years later, while, unbeknownst to the appellant, the deceased named his new common law spouse (the respondent), as irrevocable beneficiary of the policy soon after the oral agreement was made. At the time of his death, the deceased’s estate was insolvent.
At the application hearing, Justice Wilton-Siegel awarded the appellant the proceeds of the life insurance policy on the basis of unjust enrichment. The respondent was successful in arguing before the Ontario Court of Appeal that the designation of an irrevocable beneficiary under the Insurance Act was a “juristic reason” that permitted what was otherwise considered the unjust enrichment of the respondent at the appellant’s expense. The appellant was subsequently granted leave to appeal to the Supreme Court of Canada.
Justice Coté, writing for the Majority, agreed that the test for unjust enrichment was flexible and permits courts to use it in the promotion of justice and fairness where required by good conscience. The Court clarified that the juristic reason permitting an unjust enrichment needs to justify not only the enrichment of one party but also the corresponding deprivation of the other party. While the irrevocable beneficiary designation may have required the payment of proceeds for the policy to the respondent, it could not be considered as also requiring the appellant’s deprivation of the proceeds to which she was entitled under the oral agreement. The Court found that a designation of an irrevocable beneficiary under the Insurance Act precludes claims by creditors of an estate, but it does not state “with irresistible clearness” that it also precludes a claim in unjust enrichment by a party who has a contractual or equitable interest in the proceeds.
While reaching the opposite result, the dissent acknowledged that this was a difficult appeal, in which both parties were innocent and had strong moral claims to the proceeds of the life insurance policy.
We thoroughly enjoyed the opportunity to argue this case before the Supreme Court of Canada earlier this year and look forward to following the role of this decision in further developments in the Canadian law of unjust enrichment.
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As most of our readers know, when a person dies without leaving adequate support for their dependants, the courts may intervene to ensure that such dependants receive a fair share of the estate. Furthermore, pursuant to subsections 63(2) and 68(2) of the Succession Law Reform Act (SLRA), the Court has flexibility in the form of support ordered and against what portion of the Estate such support will be charged against.
Although the SLRA provides the Court with flexibility in the types of orders it can make, case law in Ontario also provides some guidance as to the priority of assets to be used in making support orders.
Priority of Support from “Traditional Estate Assets”
In Matthews v Matthews Estate, the Superior Court considered the issue of which assets should be used in making an order for dependant’s support. The assets available were both assets falling inside the estate (being mainly a ½ interest in a matrimonial home) and assets falling outside the estate, but subject to the clawback provision of section 72 of the SLRA (being a $1,000,000.00 life insurance policy). In that case, the Court made it clear that:
“where property not normally part of the Estate is brought into the Estate by virtue of the provisions of the Succession Law Reform Act to the detriment of those designated beneficiaries, care must be taken to insure that the burden of any support order in favour of the Applicant be borne by the traditional assets of the Respondent’s estate before any encroachment is made on the life insurance policy proceeds.”
No Priority Among Section 72 Assets
While the Court has set out that traditional estate assets should be used to satisfy dependant support claims before section 72 assets, there is no priority among section 72 assets, or even any requirement that an applicant seek to obtain support from all section 72 assets.
In Stevens v Fisher Estate, the estate itself was insolvent due to the debts of the Deceased. The Deceased, however, had three life insurance policies: a $84,000.00 group life insurance policy naming a lifelong friend/former common law spouse as beneficiary, a $50,000.00 insurance policy naming his 32 year old daughter as beneficiary, and a $250,000.00 life insurance policy to be held in trust for his two younger (but still adult) children. The common-law spouse of the Deceased commenced a claim but sought support only from the $84,000.00 group life insurance policy. While the beneficiary of the $84,000.00 group life insurance policy argued that the Applicant should look to the other life insurance policies before resorting to the group life insurance policy, the Court found that there was no priority of estate assets for the Applicant to look to before turning to the $84,000.00 policy.
While Stevens v Fisher Estate indicates that there is no requirement that an applicant for support look to all section 72 assets, it’s important to consider the implications of seeking support from only some, as opposed to all, section 72 assets.
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For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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Other blog posts that may be of interest:
Beneficiary designations for a life insurance policy can be an important estate planning tool. However, as with any testamentary document or disposition, questions can arise about the insured’s actual intentions after death.
In the recent decision of Sun Life v Nelson Estate et al., 2017 ONSC 4987, the Court was asked to resolve such an ambiguity by considering the validity of an insurance declaration under the deceased’s Will and the validity of a change of beneficiary designation on file with the insurer.
Juanita (the “Deceased”) died in December 2009. The Deceased was entitled to group life insurance coverage with Sun Life in the amount of $148,500.00. Following the Deceased’s death, Sun Life deposited the proceeds of the policy into Court. The Deceased’s two children (the “Respondents”) brought a Motion for a declaration that they were solely entitled to the proceeds.
The Deceased had been married to the respondent, Justin Nelson (“Justin”), since 2006. Following the Deceased’s death, Justin signed an acknowledgment that the Respondents were entitled to the proceeds of the policy. He had made no claim to the proceeds since the Deceased’s death, and his whereabouts were unknown as of the hearing of the Motion.
Beneficiary Declarations Under the Insurance Act
Pursuant to section 190 of the Ontario Insurance Act, an insurance may designate the insured, the insured’s personal representative or a specific beneficiary pursuant to the insurance contract or a declaration, including a declaration under the insured’s Will.
Section 171(1) of the Act sets out the criteria for a valid declaration. The declaration must be made by way of an instrument signed by the insured. The declaration must also be an instrument with respect to which an endorsement is made on the policy, that identifies the contract, or that describes the insurance or insurance fund (or a part thereof).
The Issue in Sun Life v Nelson Estate
In 2007, the Deceased’s employer’s group policy with Sun Life was terminated and transferred to Desjardins Financial Security (“Desjardins”). The Deceased completed an application for enrolment and an irrevocable beneficiary designation in favour of the Respondents. She also advised her financial advisor that she had changed the beneficiary for the policy from Justin to the Respondents.
However, after the Deceased’s death, it was discovered that her coverage had remained with Sun Life instead of being transferred to Desjardins because she was disabled at the time of the transfer. As a result, there were two beneficiary designations in the Deceased’s file.
The Deceased’s Last Will and Testament also included a beneficiary declaration that directed the “proceeds of the insurance policy” to be held in trust for the benefit of the Respondents. The term “insurance policy” was not defined in the Will, and the Deceased was insured under two policies at the time of her death.
Thus, the Court was asked to consider the validity of the declaration under the Will and the validity of the change of beneficiary designation in 2007.
Justice Brown’s Decision
After reviewing the facts, the Honourable Justice Carole Brown concluded that the declaration under the Will was ambiguous and did not refer to a specific insurance policy. Accordingly, the declaration under the Will failed.
However, with respect to the change of beneficiary designation form, the Court was satisfied that the Deceased clearly intended for the Respondents to be the beneficiaries of the policy. The evidence before the Court included the Deceased’s statements to the Respondents, the change of beneficiary designation form and the fact that Justin had signed an acknowledgment that the Respondents were the beneficiaries of the policy.
In the result, the Court held that the change of beneficiary designation form was valid within the meaning of section 171(1), and ordered that the proceeds be paid out to the Respondents equally.
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Umair Abdul Qadir
While direct donations of cash or securities are still king when it comes to charitable giving in Canada, there are many other ways to donate. If you’re considering a larger gift, it pays to look at some alternatives.
A little bit of planning and a look at different options ensures that charitable gifts are made in the most tax- effective manner possible, are directed to the charities you most want to support, and are best suited to your financial situation and needs.
Here are some options to consider.
A charitable gift made in your will can be claimed against up to 100% of your net income on your final two lifetime tax returns. If the bequest is too large to claim on the final return, the surplus can be carried back to the previous tax year. There are several types of bequests possible:
- Specific bequests: an amount or specific piece of property paid out before any residual gifts
- Residual bequests: a share or percentage of the residue of estate
- Contingent bequest: the naming of an alternate charitable beneficiary in case the terms of an original bequest can’t be met
- Bequest subject to a trust: a trust established at death that typically provides lifetime income to one or more named beneficiaries, and a future gift to one or more charities.
Bequests can be tricky if not executed properly. This article provides details on the key pitfalls to avoid:
There are several ways that you can make a substantial but affordable gift using life insurance.
- Buy a new life insurance policy and name your charity as the owner and beneficiary. The premiums you pay qualify for a charitable tax receipt.
- Donate an existing policy to a charity. You’ll receive a charitable tax receipt for the fair market value of your life insurance policy.
- Name a charity as the beneficiary of an existing policy. Your estate will receive a charitable tax receipt when the proceeds are paid to the charity.
Private charitable foundation
A private charitable foundation is a trust or corporation that you establish and operate for charitable purposes. It’s a permanent institution – carrying your name or legacy, or that of a loved one – through which charitable work may be funded. Because of the costs of establishing and operating a foundation, you likely need initial funding of several hundred thousand dollars to make the structure worthwhile.
Private charitable foundations can be complex structures to establish and administer, so make sure you rely on professional advice for your foundation’s creation and operation.
Donor-advised funds are a flexible and cost-effective alternative to establishing a private charitable foundation.
You start by donating a lump sum amount – typically $10,000 or more – to a charitable gift fund administered by either a charity or a financial institution. Like a private charitable foundation, you receive a tax credit for the full amount donated, up to 75% of your net income for the year. Any excess amounts can be carried forward for up to five years to generate tax credits in those years. Each year, you direct to what charities you want grant money given and in what amounts.
Here’s a detailed comparison of private charitable foundations versus donor-advised funds:
There are a number of other planned giving options as well, from beneficiary designations of an RRSP or RRIF, to charitable remainder trusts, to charitable gift annuities.
But if you weigh all your options, and decide to make a simple direct gift, the Canada Revenue Agency’s charitable donation tax credit calculator is a great way to get an estimate of the tax impact of your donation:
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Life insurance is a common estate planning tool, whether it may be engaged to increase the assets available to beneficiaries, to assist in equalizing inheritances received by multiple beneficiaries (for instance, when one child will receive an interest in a family business and other assets are not available to leave an equal benefit for other children), or to fund specific types of expenses that will become payable upon death. While the owner of a life insurance policy is more often than not the person whose life is insured, this is not always the case. In Canada, in order to purchase a life insurance policy on another person’s life, the policy owner must have an “insurable interest” in the policy subject’s life. Canada’s Insurance Act defines an insurable interest as follows:
Without restricting the meaning of “insurable interest”, a person, in this section called the “primary person”, has an insurable interest,
(a) in the case of a primary person who is a natural person, in his or her own life and in the lives of,
(i) the primary person’s child or grandchild,
(ii) the primary person’s spouse,
(iii) a person on whom the primary person is wholly or partly
dependent for, or from whom the primary person is receiving, support or education,
(iv) the primary person’s employee, and
(v) a person in the duration of whose life the primary person has a pecuniary interest; and
(b) in the case of a primary person that is not a natural person, in the lives of,
(i) a director, officer or employee of the primary person, and
(ii) a person in the duration of whose life the primary person has a pecuniary interest.
Other jurisdictions similarly allow individuals or companies to take out life insurance policies on the life of another on the basis of an insurable interest in certain circumstances. As David Freedman mentioned in his recent blog post, Disney had a life insurance policy worth $50 million in American funds on the life of Carrie Fisher as one of the stars of the Star Wars franchise, which Disney purchased in 2012 for $4 billion. This is reported to be the largest ever payout of a life insurance policy of this kind.
There is much speculation with respect to how Disney will fill the void left by Fisher’s death in the final entry in the current Star Wars trilogy (Fisher had apparently finished filming for Episode VIII prior to her passing). Some suggest that the script for the following installment will be drastically re-written as a result of Fisher’s absence. Others have referred to the posthumous appearance of Peter Cushing in Star Wars: Rogue One (I personally had no idea that it was not the original actor himself until I read Suzana’s blog on the topic) in support of the potential to use CGI technology to allow Princess-turned-General Leia Organa to appear again in Episode IX. As done with Cushing in Rogue One, Disney could, in theory, digitally impose Fisher’s face onto another actor’s body. In any event, the life insurance proceeds payable to Disney will no doubt assist in offsetting any loss that it will suffer as a result of Carrie Fisher’s untimely passing.
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On January 1, 2017, new rules for taxation of personal life insurance policies came into effect. In 2014, Bill C-43, received royal assent but its new rules on life insurance took effect this week. This marks the first change to taxation of life insurance since the 1980s.
Key changes include:
- Lower tax-sheltered savings limit
- Changes to the “250% Rule” that may allow lump sum deposits in the later years of a policy
- Less tax free income from annuities
- Lower tax free withdrawal room for business owners
- Changes to the rules on multi-life policies, which may affect the tax advantages of such plans
Plans issued prior to December 31, 2016 are grandfathered to the old rules, but any plans issued in the future will be subject to the new rules. A policy might lose its grandfathered status if it is converted from one kind of life insurance to another or if additional coverage is added to the policy. Changes that will not affect the grandfathered status of a plan include changing the beneficiary designation of the plan, transferring ownership, or switching from smoker to non-smoker status.
Life insurance is commonly used in estate planning to supplement the assets of an estate and to avoid certain tax liabilities. It is important that lawyers practising estate law are aware of these changes. For those whose life insurance policy is a central or significant piece of an estate plan, it may be prudent to seek tax advice to understand how these new rules might affect their plans.
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This week on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss life insurance in the context of two articles, namely, “That’s Life Insurance” by Michael Grob, published in the June 2016 edition of Step Journal (http://bit.ly/29Yoc3Z) and “Charitable Donations: A Summary of Tax Considerations” by James M. Parks, published in the Canadian Donors Guide 2016/17 (http://bit.ly/29SAkAF).
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Life insurance can be a useful tool in estate planning to offset tax liabilities and supplement the assets that may otherwise be available to leave to a surviving spouse or other family members.
An article by Michael Grob, featured in the most recent issue of the Step Journal, highlights the potential of life insurance in estate planning, with a focus on the utility of insurance within the context of high net worth individuals who have assets in multiple jurisdictions.
Last year, the Canadian Life and Health Insurance Association released statistics from 2014, which suggests that the size of Canadian life insurance policies continues to grow, despite prolonged low interest rates and slower than average investment growth. During 2014, the value of life and health insurance policies increased by 11.5% to $721.2 billion. While these figures suggest that the use of life insurance in estate planning is increasing, Mr. Grob states that it is less commonly used to its potential in the cross-border context.
There are many reasons why life insurance policies are such an effective estate planning tool, and why they may be especially suitable when cross-border issues may also present themselves. These reasons, which are highlighted within Mr. Grob’s article, can be summarized as follows:
- Availability of liquid funds available for use by an estate upon death, including for the satisfaction of foreign taxes and/or inheritance tax, where there may otherwise be complications in obtaining probate that will delay the payment of these estate liabilities;
- Tax concessions generally associated with life insurance (in Canada, life insurance proceeds are not typically taxable, nor are they normally subject to probate fees when a designated beneficiary other than the estate is identified);
- Accessibility to life insurance in other jurisdictions, even if local access is limited, through international providers;
- Variety of different options regarding policies and their terms; and
- Equalization of inheritances left to survivors; for example, in circumstances in which a business will be left to one child and the testator wishes to establish a life insurance policy to benefit the other(s) or to provide a corporation with sufficient funds to buyout the business interests left to one or more shareholders.
With all of the benefits associated with the use of life insurance policies, it is important to consider the potential of life insurance in achieving clients’ objectives when assisting them with estate planning.
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