The November Brown Bag Lunch saw a number of members of the OBA’s Trusts and Estates Section gather to discuss recent developments and interesting practice questions.
The meeting began with one BBLer sharing that the practice direction for the Estates List is apparently in the process of being amended to indicate that going forward, confirmation forms must be submitted 5 business days before the hearing by 8:30am. As of the date of the BBL, the practice direction still stated only that the confirmation forms must be filed 5 business days before, without specifying a particular time. Despite this, Court staff had advised at least one person that their form filed after 8:30am 5 business days before the hearing was late.
There was also a brief discussion about the status of the CRA’s position on requiring tax returns for bare trusts. Several attendees shared their views that they expected the requirement would still come into effect at some point.
Next, one BBLer raised a question about an incapable person’s ability to swear an affidavit. Other participants brainstormed how to deal with the situation; one person suggested that if it is the only practical option in the circumstances, they expected the court would be sympathetic to the situation.
Attendees then shared their practices for dealing with undertakings given pursuant to section 4(3) of the Estate Administration Tax Act. Some BBLers typically file undertakings to be fulfilled within 6 months of the undertaking itself (in accordance with the language of the statute), while others indicate the undertaking will be fulfilled within 6 months of the date of issuance of the certificate of appointment. One attendee’s view was that the key is to ensure that your client is complying with whatever timing is indicated in the undertaking.
BBLers also considered a situation where there is tension between the estate trustees and beneficiaries in an estate administration, and how to address compensation. Several attendees were of the view that where beneficiaries have already been critical of the estate trustees, it may be necessary to pass accounts, rather than simply doing an informal accounting and seeking releases from the beneficiaries. One BBLer suggested preparing court format accounts, but first attempting to deal with the accounting informally. If that approach is unsuccessful, at least the accounts will be ready to be filed with the court.
The final Brown Bag Lunch of 2022 will be held on December 20, and the first Brown Bag Lunch of 2023 will be held on January 17. All OBA members are welcome to join the meetings; please contact the moderator, Rebecca Kennedy, at rkennedy@agbllp.com for Zoom details.
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