Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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With the deadline for RRSP contributions right around the corner, I thought it would be worthwhile to review the tax treatment of RRSPs on an annuitant’s death. 

Generally speaking, when an annuitant dies, the fair market value of the RRSP is attributed to the annuitant’s income during his or her final year of life and must be included on the terminal return. The result is that an RRSP will be generally taxed in the hands of the deceased. 

However, there are exceptions to this rule.  The estate can avoid paying the taxes on an RRSP if the following are the beneficiaries:

a)      The annuitant’s spouse or common-law partner; or

b)      The annuitant’s dependant child or grandchild. 

The tax implications for the above beneficiaries vary.  If the beneficiary is the spouse, common-law partner, or a dependant child or grandchild with a physical or mental infirmity, then tax can be delayed by transferring the funds to an RRSP or RRIF. 

A dependant child or grandchild (with no infirmity) has the option of staggering the tax consequences by purchasing an annuity that matures no later than his or her 18^th birthday. 

However you choose to deal with your RRSPs when planning your estate, it is always a good idea to talk with your estate planner about the tax implications of any designations you are making. 

For more information, check out the Canada Revenue Agency’s memo on the “Death of an RRSP Annuitant”. 

Thanks for reading,

Megan F. Connolly  

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Listen to The Core Issues Concerning Estate Taxes

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the core issues surrounding estate taxes.

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Listen to "Hall v McLaughlin"
Read the transcribed version of "Hall v McLaughlin"

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the case of Hall v McLaughlin. This case explores the issue of whether or not a mirror/mutual will written early in life is binding. It illustrates the importance of making your intentions clear to your spouse.

Click "Continue Reading" for the transcribed version of this podcast.

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Yesterday I reviewed the decision of Holmes Estate (Re) [2007] B.C.J. No. 45. You will recall that a gift in the testator’s Will to “all my nieces and nephews” was interpreted in the circumstances to mean a bequest to the children of the testator’s siblings including the 18 nieces and nephews of the testator’s late wife.

One such niece, Patricia Meadows, had been married to Alfie Meadows. Alfie was seeking entitlement to a share in the residue of the estate belonging to Patricia, who had died before the testator. He was doing so on the basis of the language contained in the Will that if any of the testator’s nieces or nephews predeceased him, that person’s share was to be paid to their surviving spouse.

The problem for Alfie was that he had been convicted of Patricia’s murder! The Court quite justly denied Alfie entitlement to Patricia’s share in the estate by applying the general rule of public policy that a person is precluded from benefiting from a crime.

The irony in this case is that while Alfie’s crime didn’t pay for him, it did benefit the surviving nieces and nephews, as the gift was a class gift (when a member of the class is disqualified their share is divided amongst the remaining members).

While this case made for an interesting read, I can only hope that the decision will help deter similar claims from arising again.

Have a good day,

Natalia Angelini

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Yesterday I suggested that criminal charges in Estates, capacity and trust cases might become more common.

In R. v. Bunn (2000), C.C.C. (3d) 505,  the Supreme Court of Canada considered the sentencing of a Manitoba lawyer convicted of converting some $86,000 worth of trust monies to his own use. The accused acted as attorney for property for Soviet/Russian beneficiaries of Manitoba and Saskatchewan estates. He received monies in trust, but instead of paying it all to the beneficiaries, he redirected some of it to himself.

This conduct was discovered by the Law Society of Manitoba when conducting a spot audit of the accused. The accused was disbarred. Some compassion may be warranted: the accused cared for a disabled wife, was the sole income earner in the family, suffered financial woes for years, and lost his reputation and 20-year law career.

At trial the accused was sentenced to two years in a federal penitentiary, but the Manitoba Court of Appeal substituted a conditional sentence of two years less a day.

The Supreme Court of Canada, in a 5-3 decision, upheld the Appeal decision. The majority decided that the need for restorative justice and the benefits of reducing prison terms outweighed the minority’s desire to denounce the accused and promote general deterrence.

Lawyers tend to be easier targets in these cases because of the need to establish mens rea (the intent to commit a crime). It would be difficult for any competent lawyer to claim ignorance of proper usage of trust monies, but laypersons may be a different matter.

Thanks for reading.
Sean Graham

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Listen to "Estate Planning Considerations in the Context of Married and Unmarried Spouses"

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During Hull on Estate and Succession Planning Episode #54, Ian and Suzana discuss how to avoid Will drafting problems when creating beneficiary designations for insurance trusts.

They also discuss the importance of including funeral arrangements in your Will, and the various Provincial approaches to the revocation of wills after marriage and after a divorce.

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Listen to "Beneficiary Designation Considerations for Spousal Trusts"

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During Hull on Estate and Succession Planning Episode #53, Ian Hull and Suzana Popovic-Montag build on their last podcast regarding succession planning for married couples, and turn their focus to spousal trusts.

They discuss administrative expenses surrounding trusts, the circumstances that lead to surviving spouse litigation, and methods for ensuring the balance between beneficiary designations.

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In a recent decision out of Québec, Broodney v. Herzog [2006] Q.J. No. 14933, testamentary intent trumped the literal wording of a Will.

The testator had been involved in a loving relationship with Harry Broodney. They had lived together for twelve years. In a 1995 Will, the testator left Harry $25,000.00. In a 1998 Codicil, the gift was increased to $35,000.00, payable in monthly instalments of $600.00. In 1999, the testator executed a further Codicil, increasing the monthly payments to $1,000.00 but not changing the capital amount of the gift. Both the 1995 Will and the 1998 Codicil stated that the gift to Harry would lapse and be null and void, if he and the testator were “not living together” at the time of the latter’s death.

The issue for the Court of Québec was the meaning of the phrase “not living together”. At the time of the testator’s death, she had been living in a nursing home due to her deteriorating health. Her family consequently claimed that Harry was not entitled to the $35,000.00 gift.

The Court focused on the testator’s intentions. Her intent to benefit Harry was clear and uncontested. The Court held that the testator intended the phrase “not living together” to mean a “break up” with Harry. The evidence was clear that their loving relationship did not end when the testator involuntarily left Harry to reside in the nursing home. The evidence was also clear that the testator’s family was aware of the loving relationship. For the Court, the inability to physically live together could not be a reason for disinheriting Harry.

Not surprisingly, Harry asked for and received punitive damages as a result of the family’s refusal to honour the testator’s last wishes. The Court deemed the family’s refusal to be malicious and reckless.

The litigation could have been avoided by better wording in the Will. Drafting issues aside, the case is a good illustration of a Court employing common sense and testamentary intent to avoid an unjust result.

Have a great day!
Bianca

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Section 72(1) of Ontario’s Succession Law Reform Act allows a court to deem various assets that may normally fall outside of a deceased’s estate, to be part of the estate for the purposes of satisfying a dependant support claim. This usually includes “any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her”. However, as demonstrated in Madore-Ogilvie (Litigation Guardian of) v. Ogilvie Estate [2006] E.G. No. 4654 (Div. Ct.), this provision will not normally capture insurance policies owned jointly by the deceased and a third party.

In Ogilvie Estate, the deceased was the father of six children (three of them minors) by five different women. Dependant support claims were made on behalf of two of the minor children. It was agreed that the deceased had failed to provide adequately for his minor children.

The issue before the court was whether a joint life insurance policy, issued to both the deceased and his spouse, could be included as part of the deceased’s estate under section 72(1) of the SLRA. The deceased and his spouse were both the owners and beneficiaries of the policy, which provided that the survivor of the two would receive the face amount of the policy on the death of the other. It was undisputed that the spouse had made the majority of the payments under the policy.

The applications judge held that the policy could be included as part of the estate. On appeal, a majority of the Divisional Court reversed this decision. The majority held that a jointly owned policy cannot be included as part of an estate merely because the deceased is one of the owners of the policy. The Court recognized that s. 72 of the SLRA was designed to counter the intentional depletion of an estate at the expense of dependants. However, there are transactions that “would be considered the normal personal commerce of an individual” and not necessarily undertaken to disenfranchise a dependant. In the case at hand, the majority ultimately decided that the contractual rights of the spouse to the joint policy trumped the needs of the deceased’s dependants.

Have a great day!
Bianca

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Yesterday, we set out the first of a series of interpretation problems identified by Rodney Hull, Q.C. that often arise in Wills. Today, we set out another common provision that tends to cause difficulty …

(1) THE RULE IN SAUNDERS v. VAUTIER (1841), Cr. & Ph. 240.

(2) THE CLAUSE - “The residue of my estate to A upon attaining age twenty-five years”.

(3) THE FACTS - A is nineteen years of age on testator’s death. There is no gift over in the event that A dies before attaining the age of twenty-five years.

(4) THE QUESTION -

(a) Is the gift:

(i) vested in possession?

(ii) vested in interest?

(iii) vested subject to being divested? or

(iv) contingent?

(b) When can A call for the gift?

(5) WHERE TO START RESEARCH -

(i) Theobald on Wills - page 603 - paragraphs 43 - 29.

(ii) Feeney’s Canadian Law of Wills, paragraphs 17.54 - 17.55.

(iii) Sheard, Hull and Fitzpatrick, Canadian Forms of Wills, page 214.

Interpretation Applications can be quite expensive and time consuming. To the extent that they can be avoided, with diligent research and the ultimate consent of the beneficiaries, together with the consent of the Public Guardian and Trustee and the Children’s Lawyer, if necessary, this may not be a bad thing!

All the best – Suzana.

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Sometimes an estate trustee may get more than she bargained for.

A case in point may arise when an estate has entitlement to various pieces of artwork in an assortment of jurisdictions. How does the estate trustee locate the artwork? What constitute sufficient efforts to locate such assets? How is it valued?

All of these questions raise significant issues for the estate trustee. The advent of the internet has provided new tools to anyone making a global search for artwork. The Lost Art Internet Database is such an example. This website is a project of the German government’s central office for the recovery of lost art. Not surprisingly, a large share of such art was seized from Jewish owners by the Nazis.

In all likelihood, the estate trustee of the estate of the late Max Stern has had recourse to this website in an effort to locate lost assets to which the estate is entitled. As recently reported in the Toronto Star, the late Max Stern was the owner of an art gallery in Germany from 1913 until 1934 when he was forced to sell his holdings by the Third Reich. He escaped to Montreal in 1937 where he set up an art gallery. Upon his death in 1987, Stern named Concordia University, McGill University, and the Hebrew University of Jerusalem as the beneficiaries of his estate. The estate trustee, operating as the Max Stern Art Restitution Project, has since located many pieces originally stolen from Stern’s German gallery.

Until tomorrow,

David

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Listen to "The Estate Trustee During Litigation"

Read the transcribed version of "The Estate Trustee During Litigation"

During Hull on Estates episode #49, David and Jason discuss issues concerning the estate trustee during litigation (ETDL). They consider the circumstances that call for an ETDL, the technical procedure for appointing the ETDL and the powers and duties of the ETDL.

For more information on this topic, see:

• Salisbury v. Dell (1993 Ont. Gen Div);
• Jordan Atin's artice, The Estate Trustee During Litigation, in Estate Litigation, volume 2. 2nd ed. (Toronto: Thomson Carswell, 2000) at p.24-1; and
• Estates Act, R.S.O., c. E.21, as amended (s.28) 
  
   
  

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It is trite law that an executor’s duty is to bring in the assets of the estate and distribute to the beneficiaries. But what if the beneficiary of an estate cannot be found or has no interest in his inheritance? Reasonable steps must be taken to locate the beneficiary of an estate. But, in rare instances, a beneficiary may not be eager to be located or may disclaim his inheritance outright.

A case in point was recently reported by the BBC. A 1,000 acre estate in Cornwall, England (worth some five million pounds) is being administered by the Official Solicitor of the High Court, generating rental income of eighty-eight thousand pounds per year. John Paget Figg-Hoblyn inherited his father’s estate on his death in 1965 but, according to the BBC, has “not agreed to take up his inheritance.”

Apparently, he was finally located in 1994, living in a trailer park in California, but has once again since gone out of contact. The estate is apparently falling into disrepair.

As is often the case with estate issues reported in the mainstream media, key details are left unanswered. It appears that Mr. Figg-Hoblyn has not disclaimed his inheritance; rather, he just doesn’t want to be found!

However, we are reminded that the whole estate law regime is predicated on beneficiaries actually wanting to receive that to which they are entitled. I don’t know why Mr. Figg-Hoblyn does not want his inheritance but certainly no one can make him accept it. If his objective is to frustrate his father’s estate plan he appears to be succeeding….

Until tomorrow,

David

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A rather unique estate battle is unfolding in Maine and Connecticut as reported on February 26, 2007 by the Associated Press.

Olive Watson took the unusual step of legally adopting her same sex partner, Patricia Spado, some fifteen years ago as a means of ensuring for Spado’s financial security and presumably to guarantee the provisions of Watson’s last will (which entirely benefited Spado) against any challenge by her siblings.

Remarkably, the adoption was apparently legal in Maine notwithstanding that Spado was a year older than Watson and the two shared a conjugal relationship. Watson and Spado subsequently amicably ended their relationship in 1992 after fourteen years.

It gets even more interesting: Watson’s father was none other than the founder of the predecessor of IBM who, on his death in 1993, left a multimillion dollar trust fund for the benefit of his eighteen “grandchildren” unaware that his daughter had legally adopted Spado. A Judge in Connecticut has found that Spado cannot share in the trust (Grandfather Watson not having been aware of the adoption when he settled the trust) and Spado has appealed. The Trustees of the trust fund have apparently also commenced proceedings in Maine to seek to annul the adoption although that prospect appears unlikely as it requires proof of deception or fraud.

To my mind, the surprising element of this story is that Spado would even assert an entitlement as a “grandchild” when the purpose of the adoption was clearly to provide certainty of her entitlement to Olive Watson’s estate. It would be interesting to examine the legal requirements of adoption in Maine in more detail. Presumably the state legislature will pause to consider amendments in the glare of the spotlight of the American media….

Have a great weekend,

David

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Listen to "Protecting Your Children's Inheritance"

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During Hull on Estate and Succession Planning Podcast #49, Suzana Popovic-Montag and Jordan Atin discuss considerations and techniques to ensure the proper use of inheritances. Some of these techniques include staggered inheritances, incentive trusts and charitable foundations.

 

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On the way into the office on the GO Train a couple of weeks back, an advertisement caught my eye. The “Book of the Month” was the unlikely titled “A Short History of Tractors in Ukrainian” by Marina Lewycka. Usually, I am not one for finding a good read from an advertisement in the newspaper, even though this one was apparently short-listed for the Mann Booker Prize 2005 (I am a sucker for anything that wins awards). However, this book (which I hasten to add I have not read) nonetheless caught the eye of this estate litigator with the following synopsis (culled from the Penguin website):

“For years two sisters have had as little to do with each other as possible…But now they had better learn how to get along, because since their mother’s death, their aging father has been sliding into his second childhood, and an alarming new woman has just entered his life. Valentina, a bosomy young synthetic blonde seems to think their father is much richer than he is and she is keen to see that he leaves this world with as little money to his name as possible. If the sisters don’t stop her no one will.”

I don’t know if Valentina marries the father, or whether he demands a marriage contract or whether the sisters file a Notice of Objection after their father’s death to challenge his new will. If the author’s audience is anyone other than estate lawyers, I expect these concerns don’t figure prominently in the plot. If nothing else, Ms. Lewycka joins the ranks of Dickens, Grisham, and others as authors who recognize the universal appeal of an estate fight…

Until tomorrow,

David M. Smith

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There are numerous situations where money might become payable to a minor child. For example, the child may be the beneficiary under a Will, RRSP, or insurance policy. Alternatively, he or she may have received funds through a court Order or settlement.

You might be surprised to know that in Ontario, while a parent is automatically his or her child’s guardian of the person, he or she is not automatically the child’s guardian of property. The only way for a parent to receive this authority is by statute, court Order, or other document, such as a Will.

Although the Office of the Children’s Lawyer  represents minor children in property rights cases, it does not have the authority to act as guardian of property for minors. This means that unless a parent or guardian obtains the legal authority to receive funds for a child, then money to which the child becomes entitled will have to be paid into court and held by the Accountant of the Superior Court of Justice until the minor reaches eighteen years of age.

If money has been paid into court, the parent will have to apply to be appointed the minor’s guardian of property in order to withdraw it. Alternatively, if the funds are required for the direct benefit of the child, and the parent cannot afford the expense, the Office of the Children’s Lawyer has a procedure to request payments out of court.

For more information about the guardianship of property of minor children, you will find the information on the Ministry of the Attorney General’s website to be of use.

I hope you enjoyed my blogs this week. Have a great weekend!

Megan Connolly

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Last week, the Globe and Mail published an article on RRSP Myths, which is a timely subject with the deadline for contributions fast approaching. It dealt briefly with the taxation of an RRSP on the death of its holder.

The general rule is that, upon death, the holder is deemed to have withdrawn all the funds in the RRSP as at the date of death and will be taxed on the entire amount. This means that, generally speaking, the estate of the holder will pay the taxes, not the beneficiary of the RRSP.

The value of the RRSP is required to be reported on the deceased’s terminal tax return as part of his or her income in the year preceding death. Depending on the RRSP’s value and the total income of the deceased in that year, the proceeds of the RRSP might end up being taxed at the highest marginal value.

There are some circumstances where the estate will not be required to pay taxes on the RRSP:

• If the beneficiary of the RRSP is the spouse or common law partner of the deceased, then the RRSP funds can be transferred to his or her RRSP or RRIF, or they can be used to purchase an annuity.
• If the beneficiary of the RRSP is a financially dependant child or grandchild under the age of eighteen, the funds can be transferred to him or her to purchase an annuity. If the beneficiary is a financially dependant, mentally or physically infirm, child or grandchild of any age then the funds can be used to purchase an annuity or transferred to his or her RRSP or RRIF.

Another option is to designate a charity as the beneficiary. While the estate will still be liable to pay taxes on the value of the RRSP, it will be eligible for a tax credit, the effect of which is normally to offset the tax on the distribution.

For more information on these issues, check out the CRA Information sheet on the Death of an RRSP Annuitant.

Have a great day!

Megan Connolly

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A recent case out of England has led to an interesting twist on testamentary capacity. In Sharp v. Adam [2006] EWCA 449, the English Court of Appeal upheld the trial judge’s ruling that the unexplained exclusion of the testator’s daughters from his Will, together with evidence of brain deterioration (due to Multiple Sclerosis), was enough to set aside the Will on the basis of incapacity. This was despite evidence that the testator was able to communicate effectively by blinking and using a spelling board, and his experienced solicitor and family doctor were present when the Will was signed and had concluded that the testator had the requisite capacity.

In essence, the case turned on the lack of an explanation for why the testator had excluded his daughters. There was no evidence of undue influence by the named beneficiaries or of any problems with the daughters. While the Court of Appeal accepted that the testator’s ‘cognitive ability’ was satisfactory to make the Will, his ‘mood’ was not. In excluding his daughters inexplicably from his Will, the Court concluded that the testator’s ‘mood’ was so affected by his MS that this deprived him of the requisite testamentary capacity. This arguably raises the threshold for establishing testamentary capacity. A challenger to a Will may now be able to convince a court to set a Will aside on the basis that the testator’s mood was impaired, even if his/her cognitive abilities remained intact.

Have a great day!

Bianca La Neve

 

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LISTEN HERE

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During Hull on Estates Episode #44, Jason Allan and David Smith discuss the duties and obligations of trustees with specific consideration to trustees of discretionary trusts. They discuss various claims available to beneficiaries against a trustee who is alleged to have acted improperly and the defences available to the trustee.

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January 15, 2007 articles from the National Post and the Globe and Mail describe breakthroughs in Alzheimer’s research.

This encouraging news raises the possibility that we may be closer to a cure for this terrible disease, or at least treatments to slow the onset. Families struggling daily against the ravages of dementia can now see some light at the end of a very long tunnel.

Capacity law could be greatly affected as well. Current assessments to determine capacity, such as the capacity to manage property or the capacity to execute a Will, mix elements of science (such as cat scans) with the experience and judgment of the capacity assessor. Different assessors come to different conclusions in close cases.

As science can better identify and isolate genetic causes of dementia, we can expect more accurate tests. We might even see partial or comprehensive cures for dementia diseases. If so, patients who have lost capacity might recover it. Someone unable to sign a binding Will in 2006 could theoretically regain that ability in 2008.

This opens a Pandora’s box of fascinating questions. For example, if John Doe loses capacity in 2005 and regains it in 2010, who’s to say if he would name the same beneficiaries in 2011 as in 2004? Conceivably his personality may be significantly different after recovering capacity than it was before he lost it.

A beneficiary’s joy at recovering a loved one could be tempered by losing an inheritance.

Thanks for reading.

Sean Graham

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If a testator does not adequately shelter the bequests or insurance policy beneficiary designations to a disabled beneficiary, the disabled beneficiary may still have a way of sheltering the gift to him or her by taking advantage of what is known as a “disability expense trust”.

A disabled beneficiary, or member of a benefit unit, is entitled to put monies derived from an inheritance or the proceeds of a life insurance policy into a trust. These funds, up to a maximum value of $100,000, will not be considered assets for ODSP purposes.

This trust is distinct from a Henson Trust in that the funds may be received directly by the recipient and subsequently placed into the trust. Such a vehicle is available to shelter the funds were the testator failed to do so.

Any income earned on the funds and accrued will not be considered income to the disabled beneficiary if it the fund does not exceed $100,000.

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The Ontario Disability Support Program specifically provides that an absolute discretionary trust, also known as a “Henson Trust”, is not considered to be an asset of the disabled beneficiary. Thus, this gives a testator a significant planning vehicle to provide for a disabled beneficiary.

The discretionary trust must be truly discretionary, and the disabled beneficiary must have no vested right in the trust. Otherwise, the ODSP will consider the trust to be an asset of the disabled beneficiary.

To be a true discretionary trust, the trust must provide that any distributions to the disabled beneficiary are in the absolute discretion of the trustee. There must also be a gift over to a third party, so that the disabled beneficiary is not able to call for the collapse of the trust. Thirdly, the testator should provide for the distribution of any accrued income during the 21 year period, so that there is not a forced distribution of these funds.

Typically, the trustee will use the fund to purchase exempted assets for the disabled beneficiary, or to make distributions of income to the disabled beneficiary up to the $5,000 threshold, or to provide for the disabled individual once they turn 65 and are no longer entitled to benefits.

As the discretionary trust is not an asset of the disabled beneficiary, there is no limit to the amount that can be placed in the trust.

As the discretion given to the trustee is absolute, the choice of a trustee is of particular importance.

Have a great day.
Paul Trudelle

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Yesterday, I introduced the basic principals of the Ontario Disability Support Program (“ODSP”). In order to maintain benefits, the disabled individual must acquire assets that exceed the income and asset thresholds. In an estate planning context, this can be achieved, to a certain extent, by effective planning.

The ODSP exempts a number of assets from the calculation of the disabled person’s assets as defined under the relevant legislation and regulations. These exempted assets can be gifted to the disabled beneficiary, or bequested under a will, without disqualifying the individual. A partial list of assets that can be gifted or bequested includes:

• A principal residence, or the proceeds from the sale of a principal residence, provided that the proceeds are used for the purchase of another principal residence within 12 months from sale;

• An interest in a second property, if the Director is satisfied that the property is necessary for the health or well-being of a member of the benefit unit. For example, a second property that is a cottage could be considered necessary for health and well-being. Further, a second property in a country with currency restrictions that cannot be liquidated or where proceeds cannot be remitted outside of the country may also be exempted

• One motor vehicle, regardless of value, and a second vehicle if the net value is no more than $15,000 and it is required to permit a dependent of the applicant to maintain employment;

• The total cash surrender value held in an insurance policy, to a limit of $100,000;

• Prepaid funerals for an applicant or spouse;

• Registered Education Savings Plans;

• The amount remaining to be paid to a member of the benefit unit under a mortgage or agreement for sale (however, actual payments received qualify as income);

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UNABASHED PLUG: On January 17, 2007 I will be speaking as part of the Hull and Hull Breakfast Series Seminars. (For information, please see our website.). I am presenting a paper entitled “The Ontario Disability Support Program: What Every Estate Solicitor Needs to Know”.

As a lead up to that presentation (and to take advantage of the research done to prepare the paper), I thought I would spend some of my blog time this week discussing some of the issues to be considered were a disabled beneficiary is involved.

When one is planning an estate that involves a disabled beneficiary, special considerations must be taken into account. Obviously, the disabled beneficiary has special needs. The testator must discuss his or her hopes and goals in providing for the disabled beneficiary with the planner in order to ensure that these needs are, to the extent possible, facilitated. In addition, the estate planner must ensure that the benefits sought to be bestowed upon the disabled beneficiary are maximized.
The estate planner must ensure that these issues are fully canvassed. The estate planner must make efforts to ensure that a proper level of comfort is established with the client, as many clients are reluctant to discuss particulars of a disabled child. Further, the client may not be aware of the significance of the disability on his or her own estate plan.

Specifically, when considering an estate plan involving a disabled beneficiary, any bequests should be considered in light of the relevant social assistance legislation.

In Ontario, a program called the Ontario Disability Support Program exists. This program provides benefits to disabled Ontarians who meet certain financial and medical eligibility requirements. Once qualified, the ODSP recipient is entitled to income supplements of up to $979 per month. In addition, and often more importantly, the recipient is entitled to drug and dental benefits. Over the course of the disabled person’s lifetime, these benefits can be substantial.

 

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LISTEN HERE

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During Hull on Estates Episode #24, we discussed the issue of disclosure of information by trustees to beneficiaries. We referred to the cases:

•  O'Rourke v. Derbyshire, [1920] A.C. 581 (H.L.); Re Ballard Estate (1994), 20 O.R. (3d) 350 (O.C.G.D.); Fox v. Fox Estate (1996), 10 E.T.R. (2d) 229 (Ont. C.A.); and
• David Steele's article,  "Beneficiary's Right to Know", 4th Annual Estates and Trusts Forum, LSUC.

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We have made note this week of the fact that a beneficiary designation is subject to considerably less legal formality than a Will. The fact that many Canadians do not have Wills often means that the designation of a beneficiary is the primary means by which an individual engages in estate planning. This is particularly true of those in their thirties or forties whose largest assets will often be RRSPs or life insurance policies. We have noted that such estate planning has the benefit of clearly directing assets to the intended beneficiary without the need for obtaining probate of a Will.

Certainly, non-legal professionals such as financial advisors will frequently highlight the benefits to their clients of structuring their affairs in such a way as to minimize estate administration tax. Lawyers, as well, will recommend such benefits, mindful of the pitfalls associated when a beneficiary does not act as intended. For instance, where an individual designates a beneficiary of an asset, not for that person's personal benefit but rather, to distribute in accordance with a Will or some other written or verbal instructions (ie. a secret trust), the issue of trust becomes paramount.

What if the beneficiary does not distribute the asset as the deceased intended but keeps it for herself? For the litigation lawyer, it may be a serious challenge to prove a breach of trust on behalf of disappointed beneficiaries. The designated beneficiary can simply take the position that she has received all right, title and interest in the asset. If the designated beneficiary is herself named executor of the deceased's estate, there may well be some legitimate questions as to whether she was expected to distribute the asset in accordance with the Will. The designation, if contained in the Will, may ideally clarify whether the asset is to be subject to the terms of the Will.

Have a great weekend and we'll be back on Tuesday, David. --------

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Earlier this week we discussed the interaction between Will challenges and challenges to beneficiary designations. Specifically, an invalid Will may nonetheless contain a beneficiary designation which will be recognized by the Court as valid. An example would be a Will witnessed by only one person and therefore invalid in Ontario. Since there are no formal requirements required for the making of a beneficiary designation, a beneficiary designation contained in such Will may still be valid.

But what is the test for capacity to make a beneficiary designation? It would appear that the test is similar to the test for testamentary capacity to make a Will. The onus is on the proponent of the new designation to show that the maker of the designation had the necessary mental capacity to understand what he was signing.

What if a person is incapable? Can their attorney under a power of attorney for property make a beneficiary designation on their behalf?

It seems settled that an attorney under a Continuing Power of Attorney for Property cannot appoint a beneficiary under a life insurance policy or a registered plan as these acts are in the nature of a testamentary disposition.

 

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In our ongoing discussion of beneficiary designations, today's focus will be on the hallmarks of a valid revocation by Will.

As we discussed yesterday, section 52 of the Succession Law Reform Act provides an overview of the legal requirements of the revocation of a beneficiary designation.

One of the requirements of the statute was that a revocation of a beneficiary designation in a Will must relate "expressly to the designation, either generally or specifically."

So, for instance, a holograph Will (a valid unwitnessed Will when made entirely in the handwriting of the testator and signed by him) that lists all of the testator's assets and references those assets that are RRSPs as such, and proceeds to thereafter list the beneficiaries of the estate to share in the assets does NOT constitute a revocation of a beneficiary designation. (Laczova Estate v. House [2001] O.J. No.4992 (Ont. C.A)).

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Yesterday's blog introduced the topic of beneficiary designations and considered the law in Ontario as it related to the making of beneficiary designations. Today, we consider the law as it relates to the revocation of such beneficiary designations. This applicable statute is section 52 of the Succession Law Reform Act which, as annotated, reads as follows (with underlined words added for emphasis):

s. 52(1) A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.

The revocation of a RRSP, for example, must reference the RRSP in sufficient detail, to leave no doubt as to which instrument is being revoked. However, the Courts have had to consider how to interpret this subsection. We will consider this issue further in tomorrow's blog.

(2) Despite section 15*, a later designation revokes an earlier designation to the extent of any inconsistency.

*Section 15 of the SLRA states that a will is revoked only by: marriage, a later will, a written declaration made with the formality of a will, or destruction by the testator or another person under his or her presence and direction.

(3) Revocation of a will revokes a designation in the will.

(4) A designation or revocation contained in an instrument purporting to be a will is not invalid by reason only of the fact that the instrument is invalid as a will.

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Hello, my name is David M. Smith and I am a partner (and now one of the resident bloggers) at Hull & Hull LLP. The focus of this week's blogs will be on beneficiary designations. While the natural tendency is to focus on the assets of the estate, we know that the reality is that, quite often, those assets which pass outside of the estate by way of beneficiary designation will exceed the value of the estate assets.

Indeed, an increasingly common estate planning tool is to hold as many assets as possible outside of the estate, primarily as a legitimate means of avoiding estate administration tax (more commonly known as probate fees) and, in certain cases, protection from creditors.

The most common example of such assets that come to mind are Life Insurance, Registered Retirement Saving Plans ("RRSP") or Registered Retirement Income Funds ("RRIF"). Similarly, (and an issue to be considered in future blogs), assets that are jointly held (unless impressed with a trust for the estate) will pass to the surviving joint owner by right of survivorship.

The making and revoking of beneficiary designations are not always simple matters and, regrettably, litigation may ensue where there is uncertainty. Recent caselaw has raised some interesting twists on this developing area of estate litigation.

In Ontario, the provisions of Part III of the Succession Law Reform Act relating to the making of a beneficiary designation are contained in section 51 which reads as follows (within underlining added for emphasis):

s. 51(1) A participant may designate a person to receive a benefit payable under a plan on the participant's death,

(a) by an instrument signed by him or her or signed on his or her behalf by another person in his or her presence and by his or her direction; or (b) by will, and may revoke the designation by either of these methods.

s. 51(2) A designation in a will is effective only if it relates expressly to a plan, either generally or specifically.

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