On March 19, 2024, members of the OBA’s Trusts and Estates Section met for the monthly Brown Bag Lunch meeting. As always, a number of interesting discussions were had, and attendees shared their experiences and suggestions.
The first topic of discussion concerned an old Will where there was no affidavit of execution, one witness who had died, and where the BBLer raising the topic was unable to ascertain who was the second witness. Some attendees shared that in similar situations, they have proved the signature/handwriting of the testator using some other evidence. One BBL’er noted that the Estates Court Procedures Manual addresses this scenario and requires an affidavit explaining the situation.
Next, one BBLer asked for other attendees’ input on a situation where the witnesses to a codicil were beneficiaries of the Will, but not as a result of the codicil. Some attendees expressed their concern that a codicil republishes a Will. In that case, section 12 of the Succession Law Reform Act would technically be engaged. One BBLer shared that they had recently dealt with the same situation, explained the situation in an affidavit filed alongside their probate application, and successfully obtained the certificate of appointment of estate trustee.
Participants then engaged in a fascinating discussion about who is the settlor of a bare trust in the situation where an estate is ready to be distributed but being held pending receipt of a final clearance certificate. Some BBLers thought the testator would be the settlor on the basis that the assets initially came from them. An accountant that one BBLer had consulted was of the view that the beneficiary would be the settlor. There was no clear consensus but the topic certainly gave us some food for thought.
The meeting concluded with a discussion about CDIC requirements for lawyers’ trust accounts. One BBLer shared this resource from the Law Society of Ontario on the issue.
The next two Brown Bag Lunch meetings will be held on May 21 and June 18, 2024. If you would like to join the meetings please contact the moderator, Rebecca Kennedy, for Zoom details at rkennedy@agbllp.com.
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