Tag: Nick Esterbauer

22 Oct

Hull on Estates #582 – Informal Trust Arrangements

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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent Ontario Court of Appeal decision in Rubner v Bistricer, and the law regarding informal trust arrangements.

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18 Jun

Hull on Estates #574 – Social Media in the Context of Estate Litigation

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Today on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss the role of social media in the context of Estate Litigation.

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05 Feb

Hull on Estates #565 – The Supreme Court of Canada on Henson Trusts

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss S.A. v Metro Vancouver Housing Corp., in which the Supreme Court of Canada addresses Henson trusts for the very first time.

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13 Nov

Hull on Estates #559 – The Importance of Comprehensive Management Plans

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the recent decision of the Ontario Superior Court of Justice in Connolly v Connolly and PGT, and the importance of filing comprehensive management plans in support of applications for appointment of guardians of property.

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21 Aug

Hull on Estates #553 – Who is the Children’s Lawyer?

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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the role of the Children’s Lawyer in Ontario and the recent decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner).

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15 May

Hull on Estates #546 – Attorneyship planning options

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss attorneyship planning options and the importance of full consideration of what may seem like basic options in protecting the interests of clients during periods of mental incapacity.

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27 Feb

Is interest payable on legacies?

Nick Esterbauer Estate & Trust, Executors and Trustees, Litigation, Wills Tags: , , , , , , , , , , , , , , 0 Comments

An Ontario Court of Appeal decision released yesterday provides clarity regarding the situations in which beneficiaries of legacies will be entitled to interest on the sum payable to them under a Last Will and Testament.

In Rivard v Morris, the testator had held farmland of significant value.  A prior Will left a farm of comparable value to each of his daughters (as the testator had previously gifted a farm property to his son), and divided the residue of the estate equally between the three children.  In the months preceding his death, however, the deceased amended his estate plan to provide for a greater benefit to his son, leaving him the residue of his estate (inclusive of the farm properties) after distributions to each daughter in the amount of $530,000.00.

After the testator died, the daughters challenged his Last Will on the basis of alleged undue influence.  The will challenge was unsuccessful.  The daughters subsequently commenced another proceeding after their brother (the sole remaining estate trustee after their previous resignations) refused to pay to the sisters interest with respect to the legacies of $530,000.00.  They argued that they were entitled to interest commencing one year after the date of their father’s death, notwithstanding that the payment had been delayed in part because of the will challenge initiated by the daughters.  Any interest would have been payable out of the assets to which their brother was otherwise entitled as sole residuary beneficiary of the estate.

The daughters were unsuccessful at the hearing of their application and appealed.  The Court of Appeal found in their favour.  Justice Paciocco ordered the payment to each daughter interest in the amount of $53,000.00 out of the residue of the estate.  In doing so, Justice Paciocco relied upon the “executor’s year” and the “rule of convenience”.  In describing the rule of convenience, Justice Paciocco stated as follows (at paragraphs 24, 25):

The “rule of convenience” can be easily explained, in my view.  One of the maxims of equity is that it presumes as being done that which ought to be done. Since the beneficiaries should be enjoying the earning power of their legacies by at least the anniversary date of the testator’s death, where that enjoyment is postponed and the testator has not provided an alternative date for payment of the legacy, interest is to be paid…This general rule has been adopted in Ontario.

The rule of convenience was considered by the Court of Appeal to promote certainty and predictability, and the lower court’s decision to deny the daughters’ interest on the basis that they had commenced litigation against the estate was said to be contrary to principle, as this would have the impact of discouraging “even meritorious litigation”.  While the Court of Appeal did neither confirmed nor denied whether judges are able to exercise discretion to deny interest to beneficiaries of legacies, it found that it had been inappropriate for the application judge to do so in this case.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

26 Feb

An Update on U.S. Inheritance Tax

Nick Esterbauer Estate Planning, In the News, Wills Tags: , , , , , , , , , 0 Comments

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.

Thank you for reading,

Nick Esterbauer

 

Related blog posts that may be of interest:

06 Feb

Hull on Estates #539 – The basics of the rule in Saunders v. Vautier

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This week on Hull on Estates, Stuart Clark and Nick Esterbauer discuss the basics of the rule in Saunders v. Vautier and its expansive role in estate and trust proceedings.

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Click here for more information on Stuart Clark.

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25 Apr

Hull on Estates #516 – Posthumous Use of Reproductive Materials

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the law relating to consent to the posthumous use of reproductive materials, the British Columbia Supreme Court’s decision in K.L.W. v. Genesis Fertility Centre, and estate planning considerations when dealing with clients who have stored or donated reproductive materials.

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