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Wills, Trusts & Estates


Thursday, June 15, 2017 @ 1:27 PM

Fasken's Schwartz to receive OBA award

Fasken Martineau announced that Toronto partner Alan M. Schwartz will receive the Ontario Bar Association’s Award for Excellence in Taxation Law. He is to be honoured at a dinner on June 21, 2017. ... [read more]

Thursday, June 15, 2017 @ 8:31 AM

PROCEEDINGS - Appeals and judicial review – Practice and procedure – Notice – Orders – Setting aside

Appeal by the Winberg Estate from an order granted pursuant to s. 490 of the Criminal Code in favour of the respondent pawnbroker, Floward Enterprises. Prior to his passing, Martin Winberg purchased a $40,000 diamond. The diamond was stolen from the home at which Winberg had arranged storage. The theft was promptly reported to police. The police investigated and arrested the perpetrator. The diamond was located at a pawnbroker business owned and operated by the respondent. Police took possession of the diamond from the pawnbroker and retained it throughout the criminal proceedings against the perpetrator. Following completion of the proceeding, the pawnbroker obtained an order for return of the diamond pursuant to s. 490 of the Criminal Code. Winberg's Estate appealed the order on the basis it was not given notice of the pawnbroker's application, and was entitled to participate in the application given its ownership interest in the diamond. ... [read more]

Wednesday, June 14, 2017 @ 1:28 PM

Estates and trusts lawyer Dykema is new chair of STEP Atlantic

Sarah Dykema, an estates and trusts lawyer in the Halifax office of McInnes Cooper was recently named chair of STEP Atlantic. As chair, an appointment that runs for two years, she has also been appointed to the board of directors of STEP Canada. ... [read more]

Tuesday, June 13, 2017 @ 8:48 AM

How beneficiaries can escape the evidentiary void

When opening a registered retirement savings plan (RRSP) or registered retirement income fund (RRIF), it is common practice to designate a beneficiary for the registered plan (RP). ... [read more]

Thursday, June 08, 2017 @ 8:33 AM

Stopping the clock on CRA reassessment Stopping the clock

One of the biggest concerns for executors is the possible exposure for the estate’s income tax liability.  Unsurprisingly, the expiry of the limitation period is often a great relief to executors.  The Canada Revenue Agency (CRA) is then, typically, prohibited from reassessing tax returns. But, there are circumstances that permit CRA to reassess a return outside of the usual limitation period. ... [read more]

Wednesday, June 07, 2017 @ 3:44 PM

Lack of 'frank disclosure' leaves ownership of stolen diamond in limbo Paul Adam

A pawnbroker and a deceased’s estate interested in the return of the same diamond from police custody will have to wait as an Ontario court has set aside the order of the diamond’s return on an appeal. ... [read more]

Tuesday, June 06, 2017 @ 8:36 AM

DEPENDANTS' RELIEF LEGISLATION - Legal and moral obligations of deceased

Appeal by the deceased’s former wife, Anastasia, from the dismissal of her appeal from a decision that the proceeds of an insurance policy were included in the deceased’s estate and available to satisfy dependants’ claims. Anastasia married the deceased, Stephen, in 2003. They had two children. During the marriage, Stephen took out a life insurance policy and listed Anastasia as the beneficiary. After Stephen and Anastasia separated, a consent order was made which provided that Stephen was to pay interim child and spousal support and maintain Anastasia as the irrevocable beneficiary on any life insurance policy. Following separation, Stephen began another relationship. A child was born of that relationship three months after Stephen’s death. Prior to his death, he executed a will and an insurance title form. In each document, the beneficiary designation provided for 10 per cent to Anastasia, 17 per cent to his son, 19.4 per cent to his daughter and 53.6 per cent to his new girlfriend. When Anastasia learned of the change in designation, she successfully brought a motion to restore her designation under the policy. Following Stephen’s death, his new partner applied under the Succession Law Reform Act (SLRA) for dependant’s relief. Included in her application was a request for a declaration that s. 72 of the SLRA applied to the insurance proceeds such that they formed part of the estate. The trial judge concluded that Stephen "owned" the policy, that Anastasia did not have "creditor rights" within the meaning of the SLRA and that the consent underlying the order did not entitle her to an amount equal to the death benefit under the law of contract. The Divisional court dismissed Anastasia’s appeal, concluding that the trial judge correctly determined that Stephen owned the policy and that Anastasia’s irrevocable beneficiary designation did not give her creditor rights because she had not established a security interest in the policy. ... [read more]

Tuesday, June 06, 2017 @ 8:35 AM

GIFTS - Inter vivos - Validity of transfer - Invalidation of gift - Undue influence exerted on donor

Appeal by Morreale from the dismissal of her claim that an inter vivos gift her parents made to her sister Romanino was the result of undue influence. The parties were the only two children of the Ruccias. Morreale left the family home to marry when she was 20 years old. Her husband had a poor relationship with her father. Romanino lived with her parents all her life, even after her marriage in 2003. In 1995, the Ruccias executed mirror wills, providing that, on the death of the survivor, two-thirds of the Ruccias’ interest in a property on Beck Drive would go to Romanino and one-third would go to Morreale, with the residue of the estate to be shared equally between the parties. Mr. Ruccia was cared for by Romanino and her husband through his illness with cancer. He died in March 2009. Mrs. Ruccia died in October 2009. Morreale subsequently learned her parents had made an inter vivos gift of their equity in the Beck Drive property to Romanino, which had been sold. The proceeds of the sale had been used to purchase another property where the Ruccias lived with Romanino and her husband until their deaths. Only Romanino and her husband were on title to the new property. The Ruccias did not receive independent legal advice on these transactions. The judge found that while Romanino’s relationship with her parents had the capacity to create undue influence, there was no act of coercion or domination that would lead to a presumption of undue influence. She determined that even if the presumption had arisen, the presumption had been rebutted. ... [read more]

Friday, June 02, 2017 @ 9:09 AM

Appeal decision shines light on life insurance, Succession Law Reform Act

The recent decision of the Ontario Court of Appeal in Dagg v. Cameron Estate, 2017 ONCA 366 contains important lessons for family and estates lawyers, mediators and financial advisers.   ... [read more]

Wednesday, May 31, 2017 @ 9:10 AM

Estate trustees must be proactive when overseeing a business

Knowing how to avoid failure is an essential element of business survival. This particularly rings true in estates where an estate holds the shares in an operating business where the deceased was the sole owner and essentially the “mind and management” of the company. As is characteristic with most entrepreneurs, much of the business knowledge that led to the success of a particular company remains with the entrepreneur and upon the entrepreneur’s death, gets buried with the deceased. ... [read more]