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Wills, Trusts & Estates

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Thursday, February 23, 2017 @ 10:52 AM

GOVERNMENT ASSISTANCE PROGRAMS - Social services and programs - Entitlement - Disabled persons - Services and programs - Housing - Subsidized housing - Rent subsidies

Appeal by SA from a judgment in favour of the Metro Vancouver Housing Corporation (MVHC). The appellant was a person with disabilities. MVHC was a non-profit public housing body that provided subsidized rental units to eligible tenants. MVHC required prospective tenants to provide evidence of their income and assets to determine eligibility. An asset ceiling policy of $25,000 existed to ensure those with the greatest need benefited from rental assistance. The appellant lived at the complex from 1992 onward pursuant to annual tenancy agreements with MVHC, each of which required her to verify her assets and income. In 2012, litigation involving the estate of the appellant's late father resulted in the appellant becoming a beneficiary under a discretionary trust. The order creating the trust did not disclose the contents of the trust or its value. The appellant refused to disclose the information to MVHC beyond stating she had not received any trust payments to date. MVHC took the position the appellant was required to disclose any assets in which she had a beneficial interest, including the discretionary trust, in order to determine her eligibility for additional rent assistance. The appellant filed a petition seeking a declaration the discretionary trust was not an asset for the purpose of her tenancy agreement with MVHC with related relief. MVHC sought an order requiring disclosure of the value of the trust with supporting documentation. The chambers judge decided in favour of MVHC. SA appealed. ... [read more]

Friday, February 17, 2017 @ 12:47 PM

Proposed changes to Income Tax Act spark conversation on succession planning 'problem'

Calgary business lawyer Cameron MacCarthy was not surprised when Bill C-274 didn't pass last week and was referred to a standing committee. The bill, tabled by Quebec MP Guy Caron, aims to amend the Income Tax Act to help business owners avoid a higher tax when selling their businesses to their children. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Ignoring digital assets in estate plans puts clients at risk

Not applicable ... [read more]

Thursday, February 09, 2017 @ 7:00 PM

Wills, Estates & Trusts Law - Executors and administrators - Actions against - Personal liability - Duties

Appeal by the executrix from a judgment finding her liable for breach of trust. Pursuant to her father’s will, she and the co-trustee were directed to set aside $100,000 in a trust fund for their brother. The co-trustee was to be the trustee to invest those funds and make monthly payments of $500 to the brother. The co-trustee opened a non-registered investment plan of $100,000 with London Life. On the application form, he described himself as the annuitant and the appellant as the contingent policy holder. The monthly payments of $500 were made payable to the co-executor, who then paid the $500 to the brother monthly until 2014. Most of the money was used by the co-executor for his own purposes. The appellant argued that the application judge erred in concluding that she did not establish a trust fund, in holding her liable for losses caused by the co-executor and in not granting her relief from liability under s. 35(1) of the Trustee Act. The application judge rejected the appellant’s submission that she relied on the co-executor because of his qualifications in financial management. The application judge found she made insufficient inquiries of the co-executor or London Life as to the details of the $100,000. She was required to take real, active steps to ensure that the trust fund was set up in accordance with the Will, but she failed to do so. The application judge noted that there was no evidence establishing that the appellant had failed to act honestly, but found that she had not acted reasonably. He thus declined to exercise her discretion to grant relief under s. 35(1) of the Trustee Act. ... [read more]

Tuesday, February 07, 2017 @ 11:30 AM

EXECUTORS AND ADMINISTRATORS - Actions against - Personal liability - Duties

Appeal by the executrix from a judgment finding her liable for breach of trust. Pursuant to her father’s will, she and the co-trustee were directed to set aside $100,000 in a trust fund for their brother. The co-trustee was to be the trustee to invest those funds and make monthly payments of $500 to the brother. The co-trustee opened a non-registered investment plan of $100,000 with London Life. On the application form, he described himself as the annuitant and the appellant as the contingent policy holder. The monthly payments of $500 were made payable to the co-executor, who then paid the $500 to the brother monthly until 2014. Most of the money was used by the co-executor for his own purposes. The appellant argued that the application judge erred in concluding that she did not establish a trust fund, in holding her liable for losses caused by the co-executor and in not granting her relief from liability under s. 35(1) of the Trustee Act. The application judge rejected the appellant’s submission that she relied on the co-executor because of his qualifications in financial management. The application judge found she made insufficient inquiries of the co-executor or London Life as to the details of the $100,000. She was required to take real, active steps to ensure that the trust fund was set up in accordance with the Will, but she failed to do so. The application judge noted that there was no evidence establishing that the appellant had failed to act honestly, but found that she had not acted reasonably. He thus declined to exercise her discretion to grant relief under s. 35(1) of the Trustee Act. ... [read more]

Friday, February 03, 2017 @ 3:18 PM

CROWN - Crown lands and property

Appeal by the trustees of the Pinder Family Trust from the summary dismissal of its action against the Minister of the Environment and Parks Canada. The family leased a cottage lot from Parks Canada in Prince Albert National Park under two 42-year leases, the first of which commenced in 1948. The trustees acquired the lease in January 1995. A cottage and deck were constructed on the lot. In 2005, one of the trustees, Pinder, applied for approval of repairs to and enlargement of the deck. The Waskesiu Lake Realty Officer responded that the deck did not comply with the approved site plan of 1994 and that the deck and a shed extended well into the setbacks. She advised that Parks Canada would not review the application until the deck was brought into compliance with all required setbacks. Pinder proceeded with the repairs and extension of the deck without a building permit. When the officer learned of the repairs, a site inspection was instituted. It was concluded that the reconstruction went beyond normal repair and maintenance, constituting a complete redevelopment of the deck with an increased footprint. Meetings ensued. In 2012, Parks Canada advised Pinder that the lease would be terminated if the deck was not brought into compliance with the applicable regulations regarding projections from cottage structures. The trustees commenced proceedings seeking declarations that their lease was in good standing and that their cottage did not contravene the regulations, an injunction preventing the authorities from terminating the lease or taking any other action with respect to the deck and cottage, and damages. The proceeding was summarily dismissed. The judge considered the deck a part of the cottage, not simply a projection that was exempt from the setback regulations the authorities sought to enforce. She found that Pinder’s repair work required a permit because it impacted the structural integrity of the cottage and deck. She found that estoppel did not prevent the authorities from terminating the lease. She found no basis for the trustees’ claims of defamation, breach of privacy and intentional misconduct. She found statements made by Parks Canada to Pinder’s neighbours substantially true. She found that no common law tort of breach of privacy existed. She applied the presumption that the Crown officers acted in good faith in dismissing the intentional misconduct claim. ... [read more]

Thursday, February 02, 2017 @ 11:48 AM

Estate lawyers may see business boom

An estimated $400 billion is going to change hands within the next generation, which will be the largest transfer of wealth in Canada's history. ... [read more]

Wednesday, February 01, 2017 @ 2:06 PM

In a self-represented world, judges must be the gatekeepers | Gary Joseph

Our adversarial system operates on the premise of passive adjudication.  By this I mean the role of our judges is predominately reflexive as they hear evidence, weigh it and determine disputes based upon what has been presented to them.    Unlike some jurisdictions where judges play an investigative role, our judges must not search out evidence outside of what is presented in court to them by the parties to the dispute.   ... [read more]

Tuesday, January 31, 2017 @ 1:37 PM

B.C. law firms warned about phony e-mails Vancouver Buildings

The Law Society of British Columbia issued a Fraud Alert warning B.C. law firms and lawyers about fraudsters using e-mail scams to get them to release funds from their clients that they are holding. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Wills, Estates & Trusts Law - WILLS - Preparation and execution - Undue influence, fraud and mistake - Mistake - Types of mistakes - Drafting errors - Remedy

Appeal by the Trustee of the McLaughlin Estate from an order finding a secondary Will invalid. In 2012, the Testatrix passed away. In 2010, she had executed a primary and secondary Will with instructions to her longtime solicitor. The secondary Will addressed her home. The primary Will addressed the balance of the Estate. Clerical errors resulted in mistakes in the secondary Will. It repeated specific bequests made in the primary Will, included a revocation clause revoking all other previous Wills, including the primary Will, and omitted a residue disposition, such that an intestacy would result. In 2014, a judge ordered rectification of issues with the secondary Will in order to correspond with the Testatrix’s instructions to her solicitor. The order was not appealed. Thereafter, the Estate Trustee applied to remove an objection to appointment filed by the respondents. The application judge, of his own initiative, embarked on an examination of the validity of the secondary Will. The judge ruled that the Will was not valid based on the 2014 judge’s finding the Testatrix had not read or approved the contents of the secondary Will. The Trustee appealed. ... [read more]