Members of the Ontario Bar Association’s Trusts and Estates Section met in April to discuss a wide range of issues arising in their practices. As always, participants came ready to share their thoughts, tips, and tricks with fellow practitioners.
One issue raised by a BBLer involved a significant discrepancy between the value of an estate reported in a probate application and the amount apparently recorded by the court. The application reflected an estate value of approximately $4 million, while the court appeared to have read the application as having a value of only $1.2 million. This discrepancy led to some confusion regarding the amount of estate administration tax payable. It was suggested that the discrepancy could have been the result of an omitted or incorrect page, an administrative error, or even the file being confused with another. The consensus amongst those in attendance was to investigate the discrepancy further, either by arranging for a process server to attend at the courthouse, or for the BBLer to attend themselves, rather than simply paying the lower amount of EAT.
The next topic of discussion involved BBLers’ practices where a person is physically unable to sign a Will or power of attorney, but able to direct someone else to sign on their behalf. With respect to powers of attorney, BBLers were primarily concerned with the practical question of how to deal with the execution of the document to avoid financial institutions and other third parties taking issue with the document and refusing to accept it. Several attendees suggested that, where possible, the person should make some form of mark themselves (even just an “X” or a scribble), paired with a document describing the circumstances. If the person cannot physically sign, attendees suggested that the document be accompanied by an affidavit of execution or other similar document making it clear that the power of attorney or Will was signed at the direction of the grantor or testator.
Participants then moved on to a conversation about various financial institutions and whether they allow an executor to liquidate investments prior to obtaining a certificate of appointment of estate trustee. Some attendees were of the view that the banks ought to be concerned about refusing to allow liquidation if the market then goes down, while others saw it as more reasonable that the bank would stick with the status quo and require probate to ensure that the executor has the proper authority to give trading instructions. One practical recommendation in the case of a financial institution refusing to allow liquidation was to request that position in writing, as it may support a request to the court to expedite the probate application.
BBLers then had a brief discussion about how to ascertain all the members of a class of beneficiaries in difficult situations, such as where the estate trustee is not personally familiar with the family, and where the class includes descendants of beneficiaries who have already died. Several attendees suggested that a genealogical expert and private investigator may be necessary, and that corroborating affidavits from unrelated persons who knew the deceased (e.g. neighbours) can also be useful.
Brown Bag Lunch meetings are held on the third Tuesday of the month, from September to June. The schedule can be found here. If you are interested in attending the meetings, please contact the moderator, Rebecca Kennedy at rkennedy@agbllp.com, for Zoom information.
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