At the February Brown Bag Lunch, members of the OBA’s Trusts and Estates section discussed several fascinating topics relating to their practices, including issues with probate applications, Henson Trusts, and Will drafting.
The first discussion topic involved an unusual request from the Toronto Estates office regarding an application for a certificate of appointment of estate trustee that the attendee in question had filed. The attendee had received an error notice on the basis that she did not file an affidavit as to debts, but she did not understand why that would be necessary in the circumstances. Rather than risking delay, the attendee considered filing a brief affidavit confirming that the estate had sufficient assets to cover its debts so that the error could be rectified. Other participants suggested the court may simply have been confused about what was required in this situation.
One participant also observed that probate staff appear to be scrutinizing applications more closely and sometimes pushing back on positions lawyers take about how to apply or interpret the law. An example given by the participant was that they had served beneficiaries in relation to an anti-lapse issue, but court staff questioned the approach despite it aligning with guidance in the court’s own procedure manual.
A number of trust administration and drafting issues generated extensive discussion amongst BBLers. One topic concerned a situation involving a Henson Trust originally established for a beneficiary with health concerns who later recovered and who wanted to collapse the trust. Participants discussed whether the trustees could simply exercise their discretion to distribute the trust assets outright given that they had discretion to encroach on capital and raised other factors to consider.
An interesting topic that seems to have arisen lately in several attendee’s practices is that clients are being influenced by online content, much of which is US-based, and making certain requests that would not work as well, or at all, in Canada. BBLers shared some anecdotes about how they address these types of requests from clients.
Finally, attendees discussed how to deal with requests by clients for clauses requiring beneficiaries to sign prenuptial agreements before receiving any benefits from a testamentary trust established under a parent’s Will. Participants raised concerns with such requirements being void for public policy, difficult to enforce, and not taking into account other arrangements such as common law relationships.
The next Brown Bag Lunches will be held on May 19, and June 16, 2026. If you are interested in attending, please contact the moderator, Rebecca Kennedy at rkennedy@agbllp.com, for Zoom information.
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