Members of the Trusts and Estates bar met in November for the monthly Brown Bag Lunch. As always, attendees had interesting questions and practice tips to share with other BBLers.
The meeting kicked off with a discussion about depositing cheques made out to an estate where probate has not yet been obtained. In the instance raised by one BBLer, the client was not concerned about accessing the funds without probate, but rather was worried about the cheque becoming stale-dated. One bank initially told the client that they could not set up an estate account without a Certificate of Appointment of Estate Trustee, but some attendees suggested trying to push back on that position. One participant suggested trying to deposit the cheque in the deceased’s personal account. Another suggestion was to deposit the cheque in an account held jointly by the client and the deceased, if one exists.
Next, participants had a fascinating discussion about the new CRA trust reporting requirements, which refer to express trusts, and what types of scenarios might attract the need to report; for instance, that a resulting trust would generally not be considered an express trust, and whether the reporting requirements would apply in that case. One BBLer suggested that perhaps in the case of a resulting trust in respect of land, where there is no written agreement, the Statute of Frauds would say that it is not a valid express trust, and therefore in theory the reporting requirements would not apply. These are interesting issues to consider. We will need to keep an eye on how the new reporting requirements are applied going forward to see how these issues play out in practice.
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