Articles 2022

Discussion included the availability of the Estates Manual for use in the courts, circumstances where an out of province estate trustee was seeking probate, and the recent Supreme Court of Canada decision of Attorney General of Canada v. Fairmont Hotels Inc.

In providing independent legal advice (ILA) a lawyer must meet the standard of a competent lawyer and ensure that the client understands the nature and effect of the transaction and its consequences and is entering the transaction freely and on their own volition. ILA is not required in every circumstance, the jurisprudence confirms this and guidance gleaned suggests it is case specific.

In this second part of a two-part article series, we will examine the income tax implications that may arise when a successor subscriber is named by the deceased in the will and the consequences when such a person is not named.

There is no secret that when administering an estate the debts of the estate must be settled before any of the beneficiaries can receive the property bequeathed. An estate trustee may discover that after funeral costs, administration costs, and other debts, the value of the estate is insufficient to satisfy all of the specific or residuary gifts. This is when the principles of abatement come into play.

The continuing multitude of disputes concerning joint accounts after Pecore and Madsen illustrate how difficult it is to align real life into the confines of legal principles. Legal concepts and rebuttable onuses are often not top of mind when parents organize their financial affairs. Formal documentation to support joint ownership with right of survivorship is ideal but as discussed in this article, even the most informal of notes may suffice.

A wide variety of topics were discussed at October's Brown Bag Lunch meeting, including whether an alternate trustee can renounce before he/she has been called upon to act, whether a separated or divorced spouse was entitled to collect pre-retirement benefit of which he/she was named as beneficiary, and whether law frims are continuing to store Wills and POAs for clients.

A mutual Will is a joint Will to which the Mutual Wills doctrine applies. It is viewed as an agreement signed by two testators wherein they both agree not to subsequently alter it. In this article, the author reviews the Mutual Wills doctrine, the test for establishing the existence of a mutual Will, the availability of damages in cases involving the breach of a mutual Will agreement, and a review of some of the applicable case law.

Often, an estate will both hold real estate and have beneficiaries living in the US. In this context a question arises whether a section 116 clearance certificate is required upon the sale of real estate by the estate and distribution of proceeds to a US beneficiary. This article will argue that if certain conditions are met there is a defensible position that no clearance certificate is required

On September 29, 2016, Bill 28: All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, was introduced in the Ontario legislature. In this article, Jennifer Lynch discusses how Bill 28, if passed, will modernize Ontario’s parentage and birth registration rules, which have not been updated since 1978, and redefine who is a child or issue of a deceased person.