Members of the OBA practicing in the area of Trusts and Estates met in May for the monthly Brown Bag Lunch. Attendees discussed a number of interesting issues that come up in their practices, and shared their thoughts and suggestions with other practitioners.
Participants first discussed a question relating to a family RESP where a stepchild was originally an eligible beneficiary but subsequently ceased to qualify because the relationship between the child’s parent and the subscriber ended. Although there was no clear answer, BBLers had a good discussion and considered several possible approaches to dealing with such a situation.
The next topic of discussion concerned an issue that comes up frequently: an estate with real property but little cash or investment liquidity. What approach is best to address the payment of ongoing expenses, taxes, etc. while waiting for a certificate of appointment of estate trustee? Several BBLers raised the solution of the executor loaning funds to the estate or a beneficiary with an interest in the property paying the expenses. Other attendees suggested some other possible sources for borrowing money but it was noted that the interest rate is likely to be quite high. Attendees acknowledged in general that it is important to be careful in any situation involving a loan to an estate so as not to affect its status as a Graduated Rate Estate.
Attendees then had a brief exchange to share the current probate processing times they have been experiencing in their practices. As usual, there was a fairly wide range of times depending on the region.
Next, the group discussed whether a non-resident could be appointed as administrator of an intestate estate where all adult beneficiaries consented, there were no debts, and the administration was otherwise straightforward. Some BBLers shared their past experiences of courts allowing such appointments in appropriate circumstances. Although it did not seem to be the case that one could necessarily expect that outcome, there may be situations where it is worth trying to seek such an appointment.
BBLers then turned to a discussion about recent experiences with probating holograph Wills and being directed by the court to bring an application to prove the Will in solemn form. Based on anecdotes shared, the court’s practice in this regard seemed to vary depending on the region.
Participants moved on to have an interesting discussion about the recent Supreme Court of Canada decision in Ahluwalia v Ahluwalia, 2026 SCC 16, which recognized the new tort of intimate partner violence, and what impact this may have in the area of estate law.
Finally, BBLers discussed testamentary trusts that impose conditions before children can receive their inheritance, often in relation to obtaining a marriage contract. Attendees raised a number of concerns with this practice, including enforceability, public policy, and practical consequences. Several possible approaches were discussed, with participants sharing their thoughts on what could be effective.
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 mailto:rkennedy@agbllp.com, for Zoom information.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.