In Ontario, where probate fees (formally, Estate Administration Tax) are considered to be high, a number of probate fee minimization strategies have developed. These strategies carry with them benefits and risks, and must be considered on a case-by-case, asset-by-asset, basis. Arguably, the risks of some probate planning strategies may be greater than others. Recently, the case of Jackson v Rosenberg (“Jackson”),[1] a case of the Ontario Superior Court of Justice, presented us with, as Justice Charney describes it, a “cautionary tale” for those tempted to use joint tenancy as a probate fee minimization tool. This case centers around ownership of Nigel Jackson’s home in Port Hope (the “Port Hope property”). It involves a review of the law relating to the presumption of resulting trust, the requirements to establish a gift, consideration of what it means to make a gift of the right of survivorship and a review of the law relating to mutual Wills.[2]
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