On November 21, 2017, attendees of OBA’s Brown Bag Lunch were greeted by bright sunshine and unseasonably warm temperatures. This refreshing break from the cold paired excellently with BBL’ers lively and stimulating discourse. A summary of the BBL is found below.
The BBL opened with a discussion on the rule from Saunders v Vautier. Specifically, participants considered how the rule might apply when a trust’s sole beneficiary dies prior to the trust’s date of dissemination. BBL’ers weighed whether the trust property would be treated as an absolute gift, and form a part of the beneficiary’s estate, or whether the property would return back to the settlor’s estate on a resulting trust. The distinction between “bare trusts” and “no trusts” were examined, the case of Guest v Guest Estate, 2014 ONSC 722 was discussed, and an animated review of the principles underlying Saunders ensued.
From there, BBL’ers continued forward in the vein of trusts to discuss testamentary income splitting trusts. BBL’ers considered whether and how the assets of an income-splitting trust with a clear gift-over on the beneficiary’s death could be pulled back into that beneficiary’s estate. The importance of ensuring clear gift-over clauses at the drafting stage of a trust was addressed.
Following this, will-drafting and family law concerns specific to LGTBQ+ couples were raised and discussed. Participants considered case law relating to surrogacy contracts and reproductive technology, and recent relevant amendments to legislation, such as the Succession Law Reform Act, RSO 1990, c S 26 and Family Law Act, RSO 1990, c F 3’s revised definitions of “spouse.” The importance of proactively asking for and correctly using the preferred pronouns of each LGTBQ+ client was also highlighted.
Then, BBL’ers discussed the practical impacts of Carter v Canada, 2015 SCC 5 on their practices. While participants acknowledged that clauses relating to medical assistance in dying in a Power of Attorney for Personal Care remain legally unenforceable, BBL’ers opined on how one might draft these clauses to be effective if and when Canadian law evolves to allow such clauses.
Lastly, BBL’ers engaged in a spirited debate regarding the priority for payment of secured creditors, a deceased’s funeral expenses, and executor compensation in the case of an insolvent estate.
The next BBL will happen on December 19, 2017 – we look forward to hearing from everyone then!
About the authors
Noah Weisberg, Associate, Hull & Hull LLP
Charlotte McGee, Student-at-Law, Hull & Hull LLP