On a beautiful day in May, members of the OBA’s Trusts and Estates Section gathered for the monthly Brown Bag Lunch, where they discussed several interesting and topical matters relating to their practices.
The first topic raised by an attendee was about a lack of clarity and some conflicting provisions in a Will, which concerned minor grandchildren of the testator. The attendee in question had received detailed questions from the Office of the Children’s Lawyer in respect of some administration matters and asked for input from other BBLers about their experiences dealing with the OCL in similar situations. Other participants shared that the OCL typically does not want to be heavily involved in monitoring or interfering with estate administrations and may be satisfied by getting answers to their initial questions.
There was also a brief discussion about whether participants typically include in their motions to dispense with a bond, affidavits providing information about the applicant and their assets. Some BBLers do file such an affidavit as their standard practice, while others have successfully obtained orders dispensing with a bond without including such an affidavit.
Next, participants discussed the matter of service in the context of an ancillary grant of US probate. One beneficiary in that case was a non-resident, and there were concerns about their capacity. The BBLer dealing with this matter asked whether they had to serve the Public Guardian and Trustee in that situation. One attendee suggested following whatever steps were taken in the home jurisdiction to serve the beneficiary.
Attendees next addressed a question about Graduated Rate Estates and whether income may be distributed or interim distributions made during the period of the GRE, or whether such activity may turn the estate into a testamentary trust and cause it to lose GRE status. One BBLer mentioned language sometimes included in Wills allowing loans to be made to beneficiaries during the GRE period. Another mentioned that if a beneficiary wants their distribution earlier, the distribution can be made and that beneficiary would simply lose the lower tax rates in that regard. One BBLer commented that the GRE only applies to undistributed income, and any distributions to beneficiaries would be taxed in the beneficiary’s hands in any event.
The following topic concerned family law, specifically in respect of a dependant’s support application for an alleged adult disabled child where the party is taking the position that retroactive child support is owing, but where the support order hadn’t been enforced for a number of years by the Family Responsibility Office. One BBLer thought that an application for opinion, advice, and direction may be appropriate. Some participants mentioned that FRO is not necessarily consistent, and that they may simply stop collecting payments if they are advised by a party that the payments should stop.
Up next was a question relating to a notice of objection to the issuance of a certificate of appointment of estate trustee. The objector had requested consent to a draft order seeking disclosure, which the BBLer declined to consent to on the basis of not meeting the minimal evidentiary threshold. The objector then sent the BBL’er an issued statement of claim, seemingly attempting to get around the motion for direction and the requirement to meet the minimal evidentiary threshold. Another BBL’er shared their similar experience dealing with a will challenge commenced by claim, where they took the position in response that in order to get certain orders such as preservation, disclosure, etc. the party needed to bring a motion for directions, and that they could not get that via the action.
If you would like to attend the Brown Bag Lunch meetings, the schedule for the 2024-2025 term can be found here. Meetings are held virtually; anyone needing Zoom details should contact the moderator, Rebecca Kennedy, at rkennedy@agbllp.com.
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