Articles 2021

At the February BBL meeting, participants discussed the details of the Small Estates Process, to come into effect April 1, and the important differences from the regular application procedure. This article's summary of that discussion is helpful reading for anyone planning to use the new process. Other topics of discussion included billing practices for estate administration work, and e-certificates of appointment. The next BBL is March 16 - we hope to see you there!

The first Brown Bag Lunch of 2021 kicked off the year with discussion of Barsoski v. Wesley, and various considerations related to the increasingly virtual nature of our practice: e-filing of probate applications, electronic Certificates of Appointment, and virtual witnessing.

The Public Guardian and Trustee (PGT) liaison committee of the Trusts and Estates section is inviting comments on the PGT’s initiative to modernize their online Power of Attorney information. Those interested in commenting should review the PGT summary of the initiative and request for feedback, provided here, and send any submissions by email to Alex Procope (aprocope@pbplawyers.com) by March 26, 2021.

It's not unusual for an executor to find themselves faced with an insolvent estate. Given insolvent estates are rarely the subject of litigation, however, there is a dearth of case law to help the executor determine whom to pay first. This article provides much needed guidance on that topic, in light of section 50(1) of the Trustee Act, and case law on the priority of debts to the federal and provincial Crowns.

The final BBL meeting of the year focussed on things to come, including O. Reg. 690/20, which will change the process of applying for a Certificate of Appointment of Estate Trustee, and electronic filing of those applications.

Like almost everything this year, the OBA’s Make a Will Month looked a little different in 2020. The annual November event pivoted to an online platform for its presentations. Events were well attended, with participants attending from across and even outside the country, thanks to the flexibility offered by online programming.

A reminder to estate planners: upcoming changes to trust reporting rules will affect most Canadian-resident express trusts, and all non-resident trusts that file a T3 return, for taxation years ending on or after December 31, 2021.

This article explores the recent advances in AI generated art, including images and voices of dead celebrities that are digitally resurrected to create new artistic works. Such works, the author argues, are unlike anything that came before, and a new legislative framework, including in estates law, is required to address complicated issues surrounding the creation, ownership, and profit from such works.

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.