Tag: madsen estate v. saylor’

27 Jun

Resulting Trusts – Don’t Overlook Them

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During my talk at Hull & Hull’s recent breakfast held at the Ontario Bar Association offices, I touched on the Pecore v. Pecore, 2007 SCC 17 (“Pecore”) and Madsen Estate v. Saylor, 2007 SCC 18 (“Madsen”) Supreme Court of Canada decisions which essentially did away with the presumption of advancement except as it pertains to minor children. In effect, a child of a deceased who holds assets jointly with the deceased can no longer rely on the presumption that the deceased wanted the child to take the asset at death.

Given that new law, executors not wanting to challenge rights of survivorship by asserting a resulting trust against the surviving account holder should obtain clear and comprehensive releases and indemnities from all beneficiaries. If possible, the beneficiaries should get independent legal advice. Where independent legal advice is feasible the beneficiaries should be encouraged to get it. In any case foregoing a resulting trust claim to joint assets has risks.

The circumstances or even the identities of gift-over beneficiaries can change so much over time that a release or indemnity may not be enforced by the court. New beneficiaries can be born who may be less generously inclined as their predecessors. Family relations can turn to the worst, changing the approach to joint assets.

All in all, a difficult recipe for Executors to be sure.

Thanks for reading.

Sean Graham

20 Jun

Hull & Hull LLP – Breakfast Series

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On Monday morning Hull & Hull LLP hosted its latest Breakfast Series covering notable issues and salient case-law in the estates area.

Justin W. de Vries spoke first on Pecore v. Pecore, [2007] S.C.J. No. 17 (QL) and Madsen Estate v. Saylor, [2007] S.C.J. No. 18 (QL), two compelling decisions of the Supreme Court of Canada, and in that regard provided an effective and comprehensive analysis of the Court’s new take on the presumption of resulting trust and advancement.   Justin’s paper also contains a succinct review of other recent cases you should consider reading.  

Craig Vander Zee followed with a discussion about demand promissory notes and the limitation period issues in respect of the enforcement of such notes, particularly in light of the language of the new Limitations Act, S.O. 2002, c. 24.  In so doing, Craig reviewed the Court of Appeal decision in Hare v. Hare [2006] O.J. No. 5502.  He finished off by informing us about how this issue impacts estate matters and highlighted considerations parties to promissory notes might want to take into account.

Sean Graham ended the presentation with his thoughts on reasons to delay estate distribution.  Three important incentives he touched upon are the risks of an increase in resulting trust claims as a result of the Pecore decision, exacerbated by the fact that there may be no limitation period to such claims; foreign tax issues raised by foreign assets and foreign beneficiaries; and dependant support claims.

The presenters’ papers will be made available on our Hull & Hull LLP website. I highly recommend them all.

Have a nice day, 

Natalia R. Angelini

 

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