Articles 2019

The case of Calmusky, released March 16, raises questions about the distinctions between assets held jointly with a Deceased, with right of survivorship, and an asset of a Deceased that passes by beneficiary designation on the death of the Deceased. Are there fundamental and principled differences between the two, or should both be subject to the same presumptions of resulting trust? This case comment reviews the facts of case, and flags some difficulties with the result.

Each month, the Trusts & Estates Section hosts a Brown Bag Lunch (or "BBL"). Any interested members are welcome to join. Participants discuss legal developments, procedural challenges, and any other issues that arise. If you've been missing your usual pre-Covid opportunities to network and discuss practice issues with your colleagues, pop by the next BBL, taking place via Zoom. This article provides a summary of topics discussed at the last BBL, including the surprising decision in Calmusky.

The various regions of the Superior Court of Justice continue to reopen, and to further develop their procedures for online filing and remote hearings. Several regions of the SCJ posted new notices recently that apply to estates and trusts practitioners in those areas.

Applications to pass accounts can be complex and confusing, even for those with dedicated estates practices. The timeline and detailed procedural steps in Rule 74.18 are unlike those in any other proceeding. And despite their detail, those provisions leave unanswered many substantive questions about when, and on what evidence, objections will be determined by a court. As this article points out, practitioners should not forget s. 49 of the Estates Act when considering their litigation strategy.

Jan Goddard was this year's recipient of the OBA Award of Excellence in Trusts and Estates Law. For those who missed the virtual awards ceremony and Jan's inspiring comments, we have included her speaking notes for your reading pleasure. Congratulations again, Jan, and thank you for reminding us what an important, and endlessly interesting, area of law this is.

Effective immediately, Estates and Commercial List filings should be completed through the Civil Submissions Online portal, which has been expanded to accept applications. This direction from the court provides guidance on the process for submission.

The last Brown Bag Lunch of the term saw participants revisiting last month's discussion of the and comparing approaches to drafting Wills where the testator holds a RIF, speculating about increased probate and capital gains taxes in the future, and expressing frustration at probate application delays resulting from the court closure. Join in on the discussions in September, when the BBL reconvenes for a new term.

On those occasions where a bond is prima facie required, and the estate trustee cannot obtain an order dispensing with the requirement, how does one proceed? What exactly is a bond, how is it obtained, what does it cost, and how long must it be maintained? This article answers those basic questions and more, giving estates practitioners the necessary information to guide clients through the process.

As of 2021, trust reporting requirements will increase for non-resident trusts and certain Canadian-resident trusts. Find out how to meet the requirements and set up trusts for success in this new reporting regime of heightened disclosure, accountability and transparency obligations.

This summary of the latest Estates List Users Committee (“ELUC”) meeting provides guidance on various proceedings during the court closure, including the preferred practice for submitting probate applications to the Toronto court, how to deal with unopposed passing of accounts, and the court's position on virtually commissioned affidavits.