Sometimes a testator will attempt to rule from the grave, and in doing so create conflict among beneficiaries. Such disputes can drag on for months or years, and result in strained familial relationships. But what if the grave is freshly dug yet unoccupied, and the testator’s campaign for supremacy is ongoing?
Not all gifts call for gratitude. The decision in Leclair reminds us of the liabilities that can attach when accepting certain gifts and warns us to take active steps to avoid these liabilities.
Re Moody Estate arose from a dispute between the executors of the deceased’s estate and one of the deceased’s sons, who allegedly owed money to the deceased as a result of various loans, but who was also a beneficiary of the deceased’s estate.
At issue before the Court was whether the alleged debts were barred by the Limitations Act, and if so, whether the executors could nonetheless take the son’s debts into account in distributing the estate pursuant to the rule in Cherry v. Boultbee.
In the recent decision of Jacques v. The Canada Trust Company even some very compelling facts were not enough to immunize a plaintiff from the consequences of a limitation period.
The recently-released summary judgment decision of Justice Penny in the Bessie Orfus Estate, which was decided under the new amendments to the Rules of Civil Procedure, may give would-be will challengers pause and, by the same token, estate trustees reason to continue a vigorous defense.
Most estates practitioners are familiar with the spousal rollover on death. Essentially, capital property that passes from a Canadian resident testator to a Canadian resident surviving spouse in the ordinary course bypasses the usual deemed disposition at fair market value that occurs on the death of a taxpayer.
There can be no doubt that the Supreme Court of Canada played a major role in the further development of equitable principles and trust law concepts this past year. Early in 2011 the court released one of the most significant decisions dealing with unjust enrichment in unmarried cohabitation cases. The decision of Kerr v. Baranow(and the companion decision of Vanasse v. Seguin, released together with the same reasons) was a watershed case for the determination of the rights of common law spouses to division of property on separation.
The Ontario Disability Support Program Act, 1997 (the “Act”) is a provincial program (the “ODSP”) which provides benefits for persons with disabilities. Individuals intending to leave a residence for the occupancy and use of a recipient of ODSP benefits may want to consider leaving it in a Henson Trust rather than making an outright gift. This is especially true where additional funds will be provided for the maintenance and upkeep of the residence.
IBC’s annual Trusts Litigation Symposium this year included a panel discussion entitled, “Caught in the Wrong and Possibly Putting it Right”. I was invited to give the Canadian perspective on the UK Court of Appeal’s recent decision in Pitt and Futter, which concerned the jurisdiction to intervene in trustee discretion
The Brown Bag Lunches are an excellent forum for raising questions, both specific and general, which are of interest to members of the Trusts and Estates section. Often, there are easy answers to the questions. Often, there is no easy answer. In any event, the discussions certainly help raise awareness of the issues involved.
Deadbeat is published by the Trusts and Estates Law Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
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