Tag: personal assets
After being embroiled in a lengthy legal dispute, Audrey Hepburn’s sons appear to have settled the division of their late mother’s personal property.
By way of background, Audrey Hepburn left her estate in equal shares to her two sons. Her will, however, did not provide any directions as to how her personal belongings were to be distributed. Many of the items in dispute are famous memorabilia acquired throughout her lengthy acting career.
In Ontario, all property belonging to a deceased person who dies with a will immediately vests in his or her estate trustee. However, it is not entirely clear as to whether an estate trustee has the authority, absent specific direction from the testator, to distribute the personal effects of the deceased.
In Re Bucovetsky Estate,  O.J. No. 303 it was held that in specie distributions are not permitted in the absence of a specific direction in the will or unanimous consent of all beneficiaries. Accordingly, without specific authority or unanimous consent of all beneficiaries, an estate trustee should take care to avoid distributing personal items.
Some options that may be available to an estate trustee who is confronted with the difficulty of determining how to deal with the distribution of personal effects of a deceased person include:
- seeking directions from the court pursuant to section 60 of the Trustee Act, R.S.O. 1990 c T. 23; or
- selling and converting the personal items into cash in accordance with the testator’s will or by section 17 of the Estate Administration Act, S.O. 1990, c. E.22
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Listen to Estate Assets
This week on Hull on Estates, Natalia Angelini and Sean Graham discuss issues that surround estate assets. The value of some assets are not always determined by their financial value and the value of other assets may change dramatically over time.
Today, it is quite common for Canadians to own property in the U.S. or other foreign jurisdictions. Having multiple Wills may help protect a testator’s Canadian assets from foreign tax claims, as illustrated in the British Columbia case of Barna Estate (1990), 40 E.T.R. 89 (B.C.S.C.).
In the Barna Estate case, the deceased died owning real property in Europe and substantial personal assets in Canada. The deceased had lived and died in France. She left two Wills. One was a French Will, dealing with her real property in Europe. The second was a Canadian Will, dealing with her cash, bonds and other financial assets in Canada. None of the beneficiaries under either Will were related to the deceased.
Under the applicable French law at the time, beneficiaries not related to the deceased could be liable to pay a 60% tax on the value of the deceased’s worldwide estate.
Canada Trust, the executor named in the Canadian Will, brought an application for the court’s advice as to whether it should pay all debt and succession duties in respect of property passing under both Wills, or whether it should only pay Canadian succession and death duties in respect of property passing under the Canadian Will.
There is a presumption that a testator’s intention is for the law of the jurisdiction in which she resided at the date of execution of a Will shall apply. In this case, the deceased was living in France at the date of execution of the Canadian Will, and according to the presumption, the Will should be interpreted in accordance with French law. However, the presumption is a rebuttable one, and the court ultimately found that the deceased had intended that her Canadian Will be governed by the law of British Columbia.
Once the court decided that the Canadian Will was governed by the law of British Columbia, the court had to interpret the payment of taxes clause in the Canadian Will. Given, among other things, that the deceased’s European property was specifically excluded from the Canadian Will, the court ruled that Canada Trust, as trustee, was only required to pay the death and succession duties in respect of property passing under the Canadian Will.
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Bianca La Neve