Tag: testamentary instrument
I recently had a chance to attend a very interesting continuing legal education program organized by the Ontario Bar Association called: “Rights and Limitations on an Attorney under a Power of Attorney”.
The program was chaired by Natalia Angelini of our office and Kimberly A. Whaley of WEL Partners. Professor Albert Oosterhoff, Professor David Freedman, Thomas Grozinger and John Poyser presented their views on various questions surrounding beneficiary designations.
An interesting debate took place at the end of the program on the question of whether beneficiary designations are testamentary instruments.
Professor Oosterhoff presented his view that, beneficiary designations are not in fact testamentary acts and should therefore be considered inter vivos acts. One of the reasons cited by Professor Oosterhoff in this regard that I found compelling is the fact that a beneficiary designation does not have to comply with the formalities required of a Will. The fact is that a beneficiary designation is often executed in passing and the same considerations do not apply to such a decision as typically would apply to the making of a Will.
Then again, a testator can make a handwritten Will in passing which will be just as valid as if made in accordance with the formal requirements. However, the fact that it is made quickly and in passing does not necessarily mean that it is not a valid Will.
Another reason cited by Professor Oosterhoff in support of his position was that, in his opinion, beneficiary designations take effect when they are signed. By way of a further explanation, Professor Oosterhoff clarified that a beneficiary designation is not dependent upon the designator’s death for its “vigour and effect”, despite the fact that performance does not actually take place until the designator’s death.
This opinion was not universally shared by the panel and some of the attendees of the program. One significant issue that was raised was that if beneficiary designations are indeed not testamentary acts, there could be potential tax consequences necessitating legislative reform.
It will certainly be interesting to see whether a new case or legislative reform will shed some light on this question. I can certainly see the appeal and the logic behind Professor Oosterhoff’s view.
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Earlier this week, I blogged about criminal offences involving the theft and destruction of testamentary documents. Case law dealing with these provisions of Canada’s Criminal Code is sparse.
The 2015 British Columbia Supreme Court decision in D’Angola v. British Columbia involved multiple allegations, including an accusation that a last will and testament had been fraudulently concealed contrary to section 340 of the Criminal Code. The matter featured a mandamus application by the daughter of the deceased, who sought her sister’s prosecution for this and various other alleged violations of the Criminal Code.
The deceased, the father of the sisters, had left a will dated May 6, 2003. The will named the applicant’s sister as estate trustee and otherwise treated both sisters equally. The applicant had apparently inquired of her sister whether the deceased had a will after their father died and did not receive a clear response. Approximately five months later, the named estate trustee contacted the applicant by email and informed her of the existence of their father’s will. Eventually, the applicant was informed, by counsel for the applicant’s sister, that the sister had been named as estate trustee, was in the process of administering the estate, and that the deceased’s property located in Italy had been transferred to the two sisters and their mother in accordance with Italian succession law. The applicant later became dissatisfied with the estate trustee’s administration of the estate, stating that her conduct in that regard had been both negligent and criminal.
In summarizing the Lower Court’s decision regarding the allegation of criminal concealment of the will, Justice V. Gray noted that “even if the Sister concealed the Late Father’s will, there [was] no evidence of a fraudulent purpose on the part of the Sister, and there was nothing for the Sister to gain by concealing it.” Justice Gray declined to exercise the discretion to order a reconsideration of the issues by the Court.
Although few other decisions consider allegations of criminal theft and/or concealment of wills, this decision by the British Columbia Supreme Court suggests that, with respect to allegations of concealment under section 340 of the Criminal Code, a fraudulent purpose will be a prerequisite. Further, the Court’s considerations may include whether any benefit has been received by the accused in concealing the testamentary instrument.
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