OBA members gathered virtually on October 19, 2021 for the Trusts and Estates Section’s October Brown Bag Lunch meeting.
The meeting began with a BBLer sharing an announcement about the new O.Reg. 709/21, which amends the Rules of Civil Procedure. The new regulation is a significant change that will come into effect on January 1, 2022. It will take the existing probate forms, and consolidate them into 8 new forms and a number of other amended forms. Practitioners will be required to quickly familiarize themselves with the changes coming into effect to ensure they are filing the correct materials with the court. The new forms are intended to complement the changes to the Succession Law Reform Act that will also be coming into effect early next year. The forms are meant to reduce costs and simplify the process for probate applications.
Attendees had an interesting discussion on the topic of trusts for registered assets. BBLers shared their experiences with Wills that include clauses providing for a trust for registered assets where the trust is outside of the estate, but intended to be administered in a way that is consistent with the Will. BBLers generally seemed to share the view that while there is no legislation authorizing a creation of such a trust, the law does not expressly prohibit it either; accordingly there is some risk in drafting such trusts. Most BBL'ers stated that drafting these kinds of trusts is not typically part of their practice, given that there are no clear guidelines in this regard.
Next, attendees spoke about the Insurance Act and the definition of a successor owner as set out in section 199 of that statute. One BBLer shared the view that if a parent were to take out a policy on the life of their child and then execute a Will making a bequest of the policy to that child, such a bequest would more properly be a declaration to transfer the ownership to a successor owner. On that basis, the "bequest" should not form part of the deceased's estate. While BBL'ers in attendance tended to agree that this may be true, many held the view that the best course of action to transfer ownership of a policy to a successor owner after death, was to do so directly through the insurance company, with the relevant documents or forms, instead of in the testator's Will.
The conversation then moved on to missing beneficiaries. One BBLer sought guidance from participants regarding a situation where they had made multiple unsuccessful attempts to serve a beneficiary with their client's application for a certificate of appointment estate trustee, and now wanted to proceed with seeking a court order dispensing with service on that beneficiary. While some attendees were of the view that serving the beneficiary at his or her last known address would be sufficient, others suggested that additional steps would likely need to be taken. Such additional steps might include social media searches, advertisements, and even hiring a private investigator. If those efforts prove to be unfruitful, some BBL'ers suggested that providing an affidavit setting out the extensive steps taken, along with the promise to continue making efforts to contact the beneficiary after probate is granted, will likely satisfy the court. One BBL'er also noted that, even if service is dispensed with, the estate trustee would likely still have to continue holding the beneficiary's share of the estate until the beneficiary's whereabouts can be determined, or eventually making a payment into court or obtaining a declaration of death.
OBA members will meet again virtually for the monthly Brown Bag Lunch on January 18, 2022. For those who wish to join the next meeting and need video-conference details, please contact the BBL moderator, Rebecca Kennedy, at rkennedy@hullandhull.com or 416-640-3948.
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