It is with great pleasure to announce that myself, Ian Hull, and Lionel Tupman will be co-chairing a professional development program on Essential Evidence for Estate Litigators through the OBA.
The program has been created specifically for estate litigators and will run over three evenings on April 5, May 17, and June 6, 2018.
Details of the program can be found by clicking here.
This program is a must for anyone who litigates in the area of estates, wills, and trusts!
Submissions from the Joint Committee on Taxation Regarding Proposed Changes to Voluntary Disclosure Program
Last month, I blogged about some changes proposed by the CRA to the Voluntary Disclosure Program. It was noted that the CRA would be accepting comments with respect to the proposed changes until August 8, 2017.
The Joint Committee on Taxation of The Canadian Bar Association and Chartered Professional Accountants of Canada (the “Joint Committee”) made submissions in this regard in a letter to the Minister of National Revenue dated August 8, 2017.
In their letter, the Joint Committee recommends that the Minister reconsider a number of points, including, among other things, the introduction of a multi-tier system including the “general program” and the “limited program”. The Joint Committee states that part of the success of the Voluntary Disclosure Program is due to the fact that taxpayers applying to the Program are able, to a certain extent, to predict the consequences of initiating a voluntary disclosure. This allows non-compliant taxpayers to assess the benefits of the Program as opposed to the ongoing uncertainty of non-compliance and the risk of assessment and/or prosecution. The Joint Committee submits that the proposed changes may lead to uncertainty, and therefore, may encourage non-compliance, which would be inconsistent with the objectives of the Voluntary Disclosure Program and with encouraging non-compliant taxpayers to become compliant.
The submissions from the Joint Committee also comment that the draft Information Circular setting out the proposed changes apparently provides that the No-Name method of disclosure, wherein certain information may be provided to a Voluntary Disclosure Program officer without identifying the taxpayer, in order to obtain a better understanding of how the taxpayer’s disclosure may be addressed, will no longer be available for disclosures commencing after December 31, 2017. In the Joint Committee’s experience, non-compliant taxpayers are more likely to proceed with a voluntary disclosure if the process is perceived as transparent and predictable. If they are correct and the Minister of Revenue proposes to eliminate the No-Name disclosure method, the Joint Committee urges the Minister of Revenue to reconsider this proposed change.
The letter from the Joint Committee makes a number of other submissions that are beyond the scope of this blog, but can be read in full here.
Thanks for reading,
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The Ontario Bar Association (“OBA”) has once again designated November as “Make a Will Month”. Approximately 56% of Canadians do not have a will. This issue first arose in a 2012 LawPRO survey and has been confirmed as an ongoing concern according to a CIBC survey in August 2015.
Furthermore, according to this article in the Law Times, the percentage of lawyers who do not yet have wills is about the same as in the general population. According to Jordan Atin, many of the factors that might discourage someone from taking the time to make a will, apply equally to lawyers. Among the various factors, the most obvious is the perception that making a will is a long, complicated process and that having that conversation is not an easy thing to do.
However, the estate planning process does not have to be something awful. Mr. Atin’s experience is that clients almost always feel relieved after they finally make their will. Despite the time and potential stress involved in the will-making process, the peace of mind that will come afterward should serve as a motivating factor.
This year’s “Make a Will Month” may be even more important than it has been in the past. Notwithstanding the fact that everyone should have a will regardless of the month, as of January 1, 2016, there will be some changes to the rules governing testamentary trusts, as has been discussed on this blog before . Going forward, tax treatment of testamentary trusts will be much different than in the past. Graduated Rate Estates (GREs) will no longer be available for testamentary trusts that continue past the first three years following a testator’s death. There will also be a shift in responsibility for income tax to a surviving spouse’s estate rather than a deceased spouse’s estate.
If you have not already made your will, consider participating in the OBA’s “Make a Will Month”, as well as seeking advice with respect to the upcoming changes to the rules.
Thanks for reading.
The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner is taking place on Tuesday, May 31, 2011 at the Archeo (Distillery District), 55 Mill Street, Building 45, Toronto. The Reception begins at 5:30 p.m. with Dinner at 6:30 p.m. As Chair of the Section, I will have the pleasure of bringing the past year to a close. As well, the Section Executive for 2011/2012 year will be announced. The Section will also pay tribute to this year’s recipient of the OBA Award for Excellence in Trusts and Estates, Mary MacGregor.
The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.
In the last of my series this week on recent trust cases of interest, today’s blog looks at the case of Nolan v. Kerry (Canada) Inc., 2009 SCC 39,  2 S.C.R. 678. This case provides guidance as to when costs, arising from litigation regarding a pension trust fund, are payable out of the pension trust fund. Though Nolan v. Kerry (Canada) Inc. is a pension case, the analysis might apply to a context where there is a proceeding involving a legitimate uncertainty as to how to properly administer a trust, and/or where there is a trust dispute (whether or not the proceeding is brought by trustees or by beneficiaries).
The issues in Nolan v. Kerry were related to the obligations of an employer under a pension plan for its employees.
The Supreme Court of Canada dismissed the appeal and affirmed the decision of the Ontario Court of Appeal in favour of the respondents, the employer and the Superintendent of Financial Services. The Court of Appeal had declined to award costs to the Employees Pension Committee (the “Committee”) from the trust fund as the unsuccessful party in the litigation.
As part of my continuing series of blogs this week regarding recent trust law cases, today’s blog looks at the case of Gonder v. Gonder Estate, 2010 ONCA 172 (CanLII). The issue is this case dealt with whether an estate trustee of an estate could be removed without providing for the appointment of an alternate estate trustee or otherwise providing for the orderly administration of the estate.
In this case the estate trustees brought a motion under section 37 of the Trustee Act (Act) for an order removing them as estate trustees of the Deceased’s estate on the basis of their personal circumstances, their location and other responsibilities and financial stress. They had also become creditors of the estate and were in a conflict of interest situation.
The deceased died in January 2008, leaving an estate consisting of some cash or a cash equivalent, and a modest home in Ontario.
Under the Deceased’s Will, the named beneficiaries were the testatrix’s sister, her mother, and her brother. More specifically, the testatrix left a life estate in the Ontario property to her mother, who was still living but was no longer able to stay in the house. The will further directed that the residue of the estate was to be divided equally among the testatrix’s mother, sister and brother.
In February 2008, the Deceased’s brother commenced an action against the estate, claiming that he was the beneficial owner of the property.
The Estate Trustees, who lived in British Columbia, agreed to undertake the role of estate trustees and a Certificate of Appointment of Estate Trustee with a Will was issued to them.
The Estate Trustees had been unable to sell the property or to distribute the residue of the estate because of the deceased’s brother’s certificate of pending litigation registered on title to the property. The Estate Trustees alleged that, as a result, they had been required to spend their own money to defend the brother’s lawsuit against the estate.
At the time of the removal motion, the Estate Trustees moved for directions seeking, among other forms of relief, an order that the property be sold and the proceedings of the sale be paid into court pending the resolution of the competing interests. The Public Guardian and Trustee indicated that it did not intend to become involved in the estate.
The motions judge found that the continued service as Estate Trustees would cause substantial physical and financial hardship on the Estate Trustees and they had become creditors through no fault of their own. Furthermore, the motions judge found that section 37 of the Act did not require a trustee to provide a replacement before applying to be removed and allowed the motion.
Interestingly, the Ontario Court of Appeal found that the motion judge erred not in removing the trustees without appointing a replacement, but rather in removing them without making alternate provisions for the proper administration of the estate.
The Court of Appeal found in the specific circumstances of this case there were three objectives that ought to have been considered and addressed by the motion judge: (1) ensuring the orderly administration of the estate in the interests of the beneficiaries; (2) recognizing the plight of the respondents; and (3) providing for the timely resolution of the disputes concerning the estate.
The Court of Appeal held that section 37(4) of the Act does not constrain the power of the court to remove a sole remaining trustee and provide for an alternative mechanism for administering the trust.
Thanks for reading.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee.
www.hullandhull.com/Lawyers/Craig-R-Zee.shtmlIn yesterday’s blog, I mentioned that my blogs for the balance of this week would focus on a selection of recent trust law cases. A case that merits mentioning in the category of foreign trustees is Herring Estate (Re), 2009 CanLII 44707 (ON. S.C). This is a decision by the Honourable Justice D.M. Brown that provides clear and helpful guidance as to the circumstances under which a foreign trustee can act as ancillary estate trustee.
In this case, the Deceased was a US resident who created an inter vivos trust in North Carolina naming a licensed trust company (the “trust company”) there as the sole trustee. The trust company was also named executor of his Will. The Deceased’s wife was the sole beneficiary of the trust and the trust was the sole beneficiary of his residuary estate. Probate of the Deceased’s Will was issued in North Carolina for the estate, which was substantial in value.
The Deceased owned a new condo unit in Toronto worth $360,000 but with respect to which the estate would owe $126,831 on occupancy date, which had not yet occurred. There were no debts owing in Ontario at the time of the application.
On October 1, 2010 the Ontario Bar Association had a Continuing Legal Education Program entitled Trusts, Trustees, Trusteeship 2010. The Chair of the Program was Kimberly Whaley. This was a half day program.
I had the pleasure of presenting on the last topic of the morning being a Review and Analysis of Recent Trust Case Law.
The program topics and presenters are set out below:
- The Drafting of Trusts – paper prepared by Hilary Laidlaw and presented by M. Elena Hoffstein
- Considerations When Drafting Restricted Charitable Purpose Trusts – presented by Terrance S. Carter
- Remedies for Breach of Trust – presented by Archie J. Rabinowitz
- Drafting Trusts in Contemplation and Consideration of New Reproductive Technology – presented by Clare E. Burns
- Trust and Insolvency – presented by Frank Bennett
- Review and Analysis of Recent Trust Case Law – presented by Craig Vander Zee
In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2009-2010 was confirmed at the Section’s year end dinner on May 28, 2009.
Suzana Popovic-Montag is the incoming Chair of the Executive and I happen to be the incoming
Vice-Chair. The balance of the slate is as follows:
Past-Chair: Kimberly Whaley
Secretary: Ed Esposto
Members-at-Large: Ann Elise Alexander, Clare Burns, Robert Coates, Vincent De Angelis, Shael Eisen, Jan Goddard, Eric Hoffstein, Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Joanna Ringrose, Liza Sheard, Susan Stamm, Dina Stigas, Sender Tator, Ed Upenieks, Laura West and Melanie Yach.
I look forward to again working on the Executive and having a successful year.
Before turning the page on this past year, though, I would like to sincerely thank Kimberly Whaley for all of her efforts, hard work and counsel as the Chair of the Executive.
Have a nice day.
The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on May 28, 2008 at the Gardiner Museum in Toronto.
Kimberly Whaley, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2009/2010 year, was confirmed.
The Section also paid tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Timothy Youdan.
The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates. The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:
· academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;
· participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and
· contribution to the development of wills, trusts and estate law.
In addition to the Award for Excellence, C. David Freedman was presented with the Widdifield Award and Kimberly Whaley with the Hoffstein Book Prize.
Congrats to Tim, David and Kim. The venue, dinner and evening were all quite enjoyable.
Thanks for reading.