Review Questions

CHAPTER 1 – POWERS OF ATTORNEY FOR PROPERTY
What problems can a spouse face if not named as power of attorney for the other spouse?
 They don’t have automatic authority to deal with assets
 The assets may be frozen and no access given
 There would be liquidity issues if the family requires the funds
 There could be losses in the investments or other issues of the assets wasting
 Matrimonial home – in Ontario, regardless who is the owner of the matrimonial home, an interest in the
property cannot be granted without the consent of both spouses. Even if the home is held by the spouse
with capacity, if they are not the attorney for the spouse who is incapable, there may be issues with being
able to deal with the matrimonial home. 1.2.4.2
 Joint account – There may be issues dealing with a joint account but this may depend on the relationship
with the bank and the account agreement which was signed. The capable spouse may have authority to
deal with the joint account or may find themselves locked out of the account without access. The
capable spouse may only have access to funds they have contributed or a portion of the account. 1.2.4.1
 Brokerage accounts - Without a power of attorney the capable spouse may not have authority to deal
with a brokerage/investment account. There may be a trading authorisation that allows the capable
spouse to give certain instructions but it may limit their authority or ability to withdraw funds from the
trust. 1.2.4.4
 Stock Options – without being an attorney the spouse cannot exercise stock options on behalf of the
incapable spouse. In the absence of the power of attorney, there may be a vacuum of decision making
authority and no one will be legally able to make financial decisions unless or until the public trustee
becomes involved.
 Personal bank account – unless a power of attorney was executed at a bank then the spouse with
capacity cannot access the bank account 1.2.4.5
If there is no attorney what can be done to help manage an incapable person’s assets?
If an individual is unable to make financial decisions or manage his or her financial affairs, the power of attorney
will permit continuation of financial management by the attorney. In the absence of such a document, there may
be a vacuum of decision making authority and no one will be legally able to make financial decisions unless or until
the public trustee becomes involved. It is possible for family members or other persons to make an application to
be appointed as the guardian for the financial affairs of the individual and if that’s not possible then the court or
the office of the guardian and trustee may need to get involved.
What are some disadvantages of being named guardian vs. being originally appointed as trustee?
 delay, cost, risk of litigation, financial loss, emotional stress, financial hardship on dependants, onerous
conditions for court appointees, loss of choice, limited powers of guardian 1.2.3
THESE NOTES WERE PREPARED BY LANDON HANG FOR THE PURPOSE OF THE STEP TEST OF WILLS,
TRUSTS AND ESTATE ADMINISTRATION.
What are the requirements of a valid power of attorney? 1.3.1, 1.3.2
 the Substitute Decision act provides that the requirements of a valid power of attorney. The legislation
provides that Provincial legislation requires a power of attorney to be
o in writing,
o signed by the grantor, and
o witnessed by two individuals
What capacity is required to grant a power of attorney for property?
Capacity to give continuing power of attorney
8 (1) A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the
person could do if capable, except make a will, subject to the conditions and restrictions set out in the
power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30,
s. 8 (1).
What if you don’t have capacity to manage? Can you have capacity to appoint? 1.3.2
The degree of capacity required to grant a power of attorney for property is not necessarily the same degree of
capacity required to manage one’s financial affairs. Indeed a person may be incapable of managing one’s financial
affairs and still be capable of granting or revoking a power of attorney
What are the pros and cons of having more than one attorney? 1.4.2.9, 1.4.2.10, 1.4.3
 Appointing multiple powers of attorney can provide a check and balance to ensure each attorney acts
honestly and in the best interest of the grantor
 However there is a possibility that the attorneys cannot agree on the best course of action or there is a
deadlock on what to do next
 A grantor may consider a mechanism on the document itself dealing with how decisions should be made
or disagreements handled
What are the limits of an attorney’s authority? 1.5.1
Although an attorney is granted authority to act on the grantor’s behalf, the attorney does not have the authority
to:
 make a gift or transfer the grantor’s property for the benefit of anyone other than the grantor, unless the
document otherwise provides,
 make a Will or other testamentary disposition on behalf of the grantor,
 delegate his or her authority unless specified otherwise,
 perform acts that are personal to the grantor, or
 act in his or her self-interest or in any way that presents a conflict of interest with the grantor.
There are some actions that are personal to an individual that cannot be performed by an attorney under a power
of attorney. For example, if the grantor has been elected as an officer or director of a corporation, the attorney
may not exercise the grantor’s duties or powers as a director or officer of the corporation since these positions are
personal to the individual grantor. Similarly, an attorney may not take over the role of an executor or trustee, or as
attorney for another person in place of the attorney.
Differentiate power of attorney from a trust
What are the attorney’s authority to delegate investment decisions or responsibilities with same?
An attorney general cannot delegate their decision making powers unless the document creating the power of
attorney provides for delegation. There are certain tasks such as administrative tasks, accounting, or investment
advice that an attorney may delegate to others but the attorney will still be required to oversee the selection
process and management of these delegates/agents.
What happens if an attorney gives away property of the grantor that was a gift in the Will?
Disposition of property given by will (SDA)
35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific
testamentary gift in the incapable person’s will.
Proceeds of disposition
36 (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that
a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on
the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a
corresponding right in the proceeds of the disposition of the property, without interest.
How are attorneys compensated for their time and expenses?

In Ontario the Substituted Decisions Act provides a prescribed fee schedule for compensation for an attorney. An
attorney takes compensation, he or she may be held to a higher standard of care in the management of the
grantor’s assets. The annual compensation that you are allowed to take is set out in a fee scale in Ontario
Regulation 159/00 . This scale determines the amount of compensation you may take and the method you shall
use to calculate that amount.
You may take more compensation than the amount prescribed by the fee scale if you receive written consent
from the Public Guardian and Trustee AND the incapable person’s guardian of the person or attorney under a
power of attorney for personal care, if he or she has one.
Fee Scale:
As a guardian of property, effective April 1, 2000 for all new transactions, you are entitled to compensation of:
3% on capital and income received by you;

3% on capital and income disbursements; and
3/5ths of 1% of the annual average value of the assets (this is called the care and management fee).
How can an attorney be terminated?

Revocation - A grantor may revoke a power of attorney at any time assuming the donor has the requisite capacity
to do so. In Ontario, a revocation must be in writing and executed in the same way the power of attorney is
required to be executed (i.e., in the presence of two witnesses).
Judicial Power - A attorney’s power can be removed by the judicial power of the court. The court holds attorneys
to a fiduciary duty and if this is breached it could lead to removal. The court, however, is extremely cautious in
removal of attorneys as a result it’s extremely difficult to successfully remove an attorney through the courts.
In general, a court will only remove an attorney where there is strong and convincing evidence of misconduct or
neglect. An attorney may be removed where conduct clearly demonstrates an inability to understand and perform
the duties diligently.
Resignation - An attorney under a continuing power of attorney may resign but, if the attorney has acted under
the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation parties
which are listed in the legislation (interested parties, parties they have dealt with, certain family members).
Notice to other persons
(2) An attorney who resigns shall make reasonable efforts to give notice of the resignation to persons with whom
the attorney previously dealt on behalf of the grantor and with whom further dealings are likely to be required on
behalf of the grantor. 1996, c. 2, s. 7 (3).
Termination
12 (1) A continuing power of attorney is terminated,
(a) when the attorney dies, becomes incapable of managing property or resigns, unless,
(i) another attorney is authorized to act under subsection 7 (5), or
(ii) the power of attorney provides for the substitution of another person and that person is able
and willing to act;
(b) Repealed: 1996, c. 2, s. 8 (2).
(c) when the court appoints a guardian of property for the grantor under section 22;
(d) when the grantor executes a new continuing power of attorney, unless the grantor provides that there
shall be multiple continuing powers of attorney;
(e) when the power of attorney is revoked;
(f) when the grantor dies. 1992, c. 30, s. 12 (1); 1996, c. 2, s. 8.
Execution of revocation
(2) The revocation shall be in writing and shall be executed in the same way as a continuing power of
attorney. 1992, c. 30, s. 12 (2).
What are some factors as who should be attorney? 1.4.2

- investment knowledge and financial management skills
- nature and complexity of the assets of the grantor
- family situation
- appointing children
- location of attorney 1.4.2.5
o A Canadian investment advisor is prohibited under Canadian securities regulation from
taking instructions from a resident of the U.S. Accordingly if there are investment
accounts with Canadian financial institutions, it would be best to have resident Canadian
attorneys.
- income tax considerations for Canadian Controlled private Corporations 1.4.2.6
o an attorney is considered to own the shares of the grantor. Where there are holdings in
private corporations, the existence of non-resident attorneys causes the corporation to
lose its status as a resident of Canada for tax purposes. In addition the choice of a
particular attorney may cause the corporation to become “associated” for tax purposes
with other Canadian controlled private corporations. Both of these would result in
adverse income tax consequences.
- Age of the attorney
- Corporate attorney
What are the duties of an attorney? 1.6.2
 Stay within the scope of the authority delegated;

 Exercise reasonable care and skill in the performance of acts done on behalf of the donor (if acting
gratuitously, the attorney is held to the standard of a typically prudent person managing his or her own
affairs; if being paid, the attorney is held to the standard applicable to a professional property or financial
manager);
 Not make secret profits;
 Cease to exercise the authority if the power of attorney is revoked;
 Not act contrary to the interests of the donor or in conflict;
 Take no compensation unless agreed on or granted by the court;
 Account for dealings with the affairs of the donor when lawfully called on to do so;
 Not make, change, or revoke a will on behalf of the donor; and
 Not exercise the power of attorney for personal benefit unless authorized to do so by the document, or
unless the attorney acts with the full knowledge and consent of his or her principal.
What are possibly some remedies if an Attorney actss inappropriately? Q5

- An interested party with standing can challenge the attorney’s action to have the removed at attorney if
the conduct has fallen below the standard of care required
- An executor can have the actions of the attorney reviewed if the grantor/testator has died
- The attorney may be required to account for their actions and pass accounts
- The attorney may be required to repay the funds that were misused and be liable for damages
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CHAPTER 2 – PERSONAL CARE AND HEALTH CARE DECISIONS
What are the requirements of a granting a power of attorney for personal care?
An individual is able to grant a power of attorney for personal care if they have attained the age of 16 and have the
requisite mental capacity to grant the attorney and the document is executed in the presence of two witnesses,
each of whom shall sign the power of attorney as witness.
What is the capacity requirement for giving a power of attorney for personal care?
Generally the maker must understand the nature, effect, and consequences of the personal directive and that the
proxy may be able to make personal care decisions on his or her behalf in the event of the subsequent incapacity
of the maker. An individual may have capacity to grant a personal directive even if incapable of making personal
care decisions. A maker need only be 16 years of age in Ontario.
What happens if there is no POAC?

Where there is no attorney named then there may be a vacuum in decision making for one’s health care decisions.
Legislation, however, can provide for a default decision maker. In Ontario the Health Care Consent act provides a
list of individuals who may make decisions or give consent to medical treatment in order of priority. Only a court
appointed guardian of the person outranks the attorney for personal care.
What is a personal Directive?

A personal directive is the document executed or instructions given by an individual to provide instructions for
personal care and/or health care decisions in the future when that individual is incapable of making such decisions
and appoints a person to make decisions about his or her personal care when incapable.
What is a living Will?

A living Will refers to the directive or instruction component of a personal directive document. It sets out the
directions with respect to the individual’s preferences, wishes, and instructions regarding personal care decisions.
Can I express my wishes in advance?

Ontario laws recognize that your known wishes expressed while mentally capable about your future care choices,
will be binding on your attorney or other substitute decision-makers, unless they are impossible to follow. Ontario
law does not use the term “living will’. Sometimes people use the term “advance directive” to refer to a written
statement of wishes about future care.
Is an “advance directive” the same thing as a “Power of Attorney”?

No. A Power of Attorney is a legal document in which you name a specific person to make decisions on your
behalf. You can, however, write your treatment wishes (an “advance directive”) as part of your Power of Attorney
for Personal Care so that you can be sure your attorney is aware of them. An “advance directive” just addresses
your treatment and personal care wishes and does not need to name anyone or be written in any specific way.
How can one leave instructions in their power of attorney for person care and require attorney to follow the
requirements?
An individual can leave instructions in their personal directive component of the attorney for personal care to let
their wishes known to the decision maker. It is sometimes unclear how binding these instructions are but it
provides the attorney insight on how one would prefer their treatment.
How is a power of attorney for personal care terminated?
Termination
53 (1) A power of attorney for personal care is terminated,
(a) when the attorney dies, becomes incapable of personal care or resigns, unless,
(i) another attorney is authorized to act under subsection 46 (5), or
(ii) the power provides for the substitution of another person and that person is able and willing to act;
(b) when the court appoints a guardian for the grantor under section 55;
(c) when the grantor executes a new power of attorney for personal care, unless the grantor provides that there
shall be multiple powers of attorney for personal care;
(d) when the power of attorney is revoked. 1992, c. 30, s. 53 (1); 1996, c. 2, s. 34 (1, 2).
A revocation shall be in writing and shall be executed in the same way as a power of attorney for personal care.
Who is eligible to act as attorney? 2.10.1

Ontario permits a person to act at age 16.
What are some factors as who can be a POAC? 2.10.2

The maker should choose someone who has the following characteristics:
• shares (or understands and will respect) the values about health care and personal care of the
maker,
• trustworthy and diligent,
• able to make difficult decisions under pressure,
• can exercise sound judgment,
• able to understand advice of health care professionals,
• is accessible on short notice for emergency situations,
• is willing to act,
• will carry out the proxy’s instructions or last known wishes, and
• is someone who has the respect of other family members.
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CHAPTER 3 – THE LAW OF WILLS
What are the types of Wills?

Conventional Will A conventional will is a will is authorised under the ordinary rules in the laws of the
applicable jurisdiction as to formalities of form and execution. This is sometimes also
called an “attested” Will
Notarial Will A special form of Will that is authorised under Quebec Civil Code because it must be
made before a notary.
Proponent of Will The “proponent” of the Will is the person, usually the executor, who applies for probate.
To “propound” a Will is to apply for probate in solemn form.
Will in Solemn Form A will which needs to be proved before the court to be certified as a valid Will.
Will in Common Form A will which is probated upon an unopposed administrative application to the court.
What are four essential elements for a document to be a Will? 3.2
1. There must be a clear intention to dispose of property.

2. It must intend to take effect only after the death of the maker.
3. It must be revocable.
4. It must be executed in compliance with the laws for Wills of the province or territory.
What are the requirements for a Will to be enforceable? 3.3.1
• the testator having knowledge and approval of the contents,

• an age requirement for the testator,
• a special test for capacity of the testator,
• absence of fraud, mistake, and undue influence, and
• special requirements or “formalities” of the Will document itself and its execution.
What are the four major requirements or formalities required for a conventional will? 3.3.2
In general, conventional Wills have four major requirements.
1. The Will must be in writing.

2. It must be signed at the foot or end by the testator or by some other person in the presence of the
testator or by someone who is acting under the direction of the testator.
3. The testator must sign in the presence of at least two witnesses who are present at the same time.
4. At least two attesting witnesses must sign the Will in the presence of the testator.
What is substantial compliance? 3.3.3

In some provinces legislation permits the courts to dispense with the formal requirements, providing the court is
satisfied that the document expresses the testamentary intentions of the deceased. This is known as substantial
compliance. Substantial compliance legislation is currently present in all provinces except Ontario.
What are the requirements for testamentary capacity? 3.3.4
In order for a Will to be valid, a testator must meet an age requirement and must have “testamentary capacity,”
which is concerned with the testator’s mental faculties. The leading case on testamentary capacity is Banks v.
Goodfellow which provided:
1. The testator must have an appreciation of the nature of the Will and its effects; this means the testator
understands that he or she is creating a document that has the effect of giving property away to others.
2. The testator must comprehend the nature and extent of his or her assets and liabilities, but this
requirement does not go so far as to require the testator to know where each and every dollar is located.
3. The testator must comprehend the legal and moral claims that may be brought against the estate.
4. The absence of any mental illness or conditions that could potentially affect the terms of the Will.
What if someone may have certain delusions but may still have capacity? 3.3.4
- The testator’s will may still be valid despite their delusions because the Will was not made as a result of
the delusion and no clauses were inserted or omitted from the Will as a result of it
- A delusion must have affected the provisions or contents of the Will to vitiate the testator’s testamentary
capacity
What is undue influence and how does it affect a Will? 3.3.5

“Undue influence” is a term that refers to influence exerted by someone on the testator and that influence caused
the testator to execute the Will or a provision in it. Where the testator has been unduly influenced, the Will is not
the result of the testator’s voluntary actions. If it is shown that a testator was unduly influenced, then the Will or
provision in question will be invalidated. Mere influence or persuasion by someone on the testator will not
invalidate a Will. A Will is rendered invalid only where the degree of influence exerted on the testator is so great
and overpowering that it ought to be considered undue influence.
Who has the Onus of proof when alleging Undue Influence? 3.3.6
The onus of proof is on the party alleging undue influence to prove that the testator was unduly influenced.
Because of its potentially devastating emotional impact on family members, the allegation of undue influence
should not be made frivolously.
Re West Estate – A litigant who pursues such a claim may be penalised as to costs to discourage litigation of
unsubstantiated allegations with no chance of success but which cause enormous distress and embarrassment to
the family.
What may give rise to suspicious circumstances? 3.3.7

• vulnerability of the testator due to age, illness, disability, or dependence on another person,
• change in beneficiary from a previous Will or Wills,
• disinheriting family members in favour of a person of recent acquaintance or a stranger,
• a gift to a person in a special relationship with the testator such as the testator’s lawyer, doctor, or other
person in a position of power or trust, or
• reliance on translation or other third party communication of the testator’s wishes or instructions.
Who has the onus of proof where there are suspicious circumstances? 3.3.7
Where a Will has been prepared in circumstances that are suspicious, it is the responsibility of the propounder of
the Will to remove such suspicion. The degree of proof is the “civil” standard being “on the balance of
probabilities” and falls short of the criminal standard of “beyond a reasonable doubt.”
Vout v. Hay, The Supreme Court of Canada set out the legal principles of suspicious circumstances.
• The legal burden with respect to due execution, knowledge, approval, and testamentary capacity of the
testator lies with the propounder of the Will.
• There is a general presumption that the above factors are satisfied, which may be rebutted with sufficient
evidence.
• The evidence must be scrutinised in accordance with the gravity of the suspicion.
• The burden of proof respecting fraud and undue influence is upon those attacking the Will on the balance
of probabilities.
Factors that might give rise to suspicious circumstances include the following:
• vulnerability of the testator due to age, illness, disability, or dependence on another person,
• change in beneficiary from a previous Will or Wills,
• disinheriting family members in favour of a person of recent acquaintance or a stranger
• a gift to a person in a special relationship with the testator such as the testator’s lawyer, doctor, or other
person in a position of power or trust, or
• reliance on translation or other third party communication of the testator’s wishes or instructions.
How does Fraud affect Wills? 3.3.8

Fraud - Where it is shown that a Will or a provision in it was the result of some fraud perpetrated on the testator,
then that Will or provision will be rendered invalid. It must be shown that the fraud was perpetrated on the
testator intentionally with the purpose of tricking the testator. However, if the testator has other reasons for
making the gift, then the presence of fraud will not invalidate that gift. Similar to undue influence, the onus of
proof is on the party who advanced the allegation of fraud.
What are the categories of mistake and how do they affect Wills? 3.3.8
Where a testator was motivated to make a Will or a provision in it by a mistake, then the Will or provision is invalid
on the ground that the testator did not really approve of it. There are three categories of mistakes.
1. A mistaken belief of fact - If a testator made the Will based on the mistaken belief that certain facts were
true when they were really false, then the Will or a portion of it may be rendered invalid. Note that a
mistaken belief of the facts will serve to invalidate the Will or a portion of it only if it was the sole
motivation that the testator had for making the Will or provision.
Kennell v. Abbott: Where a husband uses fraud and deceit to induce his wife into marrying him when he
is, in fact, married to someone else, then the courts may set aside a bequest in the wife’s Will to her
husband if the court finds that the bequest was made solely on the belief that he was her husband.
Campbell v French: A testator revoked a gift because she had received incorrect information that the
beneficiaries were dead, then the revocation will not be valid because it was made on a mistaken belief of
the facts.
2. Drafting errors in the Will document - It is important to distinguish between a mistake of the facts and a
mistake of the legal effect of the words used in a Will. Mistaken beliefs of the facts can invalidate a Will,
whereas a mistaken belief of the legal effect of the words in a testamentary document will not invalidate
it.
If a drafting mistake was made in a Will by the draftsperson such that words were inserted into the Will that
do not reflect the testator’s intentions, then a court can exercise its power of rectification to strike out the
words that were inserted by mistake. Also, the power of rectification generally only allows the courts to strike
out certain words inserted in the Will by mistake, but it does not go so far as to allow the courts to add words
into the Will
3. Execution of the wrong Will - Another category of mistake occurs where the wrong Will was executed.
This may occur where, for example, a husband and wife made their Wills at the same time but accidently
signed the wrong Wills such that the husband signed the wife’s Will and vice versa.23 Under these
circumstances, some courts have been willing to strike out the error and substitute the correct signature
in its place. Re Brander
How is a Will revoked? 3.5

A Will must be revocable. Revocation must conform to the statutory requirements in the jurisdiction. The SLRA
provides:
Revocation generally
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;

(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by
his or her direction with the intention of revoking it. R.S.O. 1990, c. S.26, s. 15.
How does marriage affect a Will? 3.5.2.1

Revocation by marriage
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and
filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the
appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of
the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
How does divorce affect a Will?

17(2) Exception on termination of marriage
(2) Except when a contrary intention appears by the will, where, after the testator makes a will, his or her
marriage is terminated by a judgment absolute of divorce or is declared a nullity,
(a) a devise or bequest of a beneficial interest in property to his or her former spouse;
(b) an appointment of his or her former spouse as executor or trustee; and
(c) the conferring of a general or special power of appointment on his or her former spouse,
are revoked and the will shall be construed as if the former spouse had predeceased the testator. R.S.O. 1990, c.
S.26, s. 17.
What are some drawbacks of gifting early rather than in a Will? 3.6.1
• the gift is irrevocable;
• loss of control over the funds or property;
• exposure to recipient’s creditors or claims of spouses or heirs;
• the effect of the gift on the recipient — family members may not be ready to manage wealth;
• potential future fi nancial needs of the donor or other immediate family members;
• costs of disposition of property, including income tax on any accrued gains, legal fees, and transfer taxes;
and
• effect on distribution of remainder of estate.
What are Gifts Donatio Mortis Causa?

Donatio mortis causa is Latin for “gift in contemplation of death,” sometimes called a “deathbed gift.” A gift
donatio mortis causa is a gift made during the lifetime of the donor in contemplation of death, although not
necessarily in the expectation of death.
The requirements include:

• the gift must be made in contemplation of death;
• the property that is the subject of the gift must be delivered to the donee, although “constructive
delivery” is sufficient;
• the gift must be made in circumstances that make it clear that the gift is only to take effect in the event of
death; and
• the donor must die from the peril contemplated.
What types of gifts can be made in a Will? 3.8
Devises Gifts of real properties

Bequests Gifts of tangible properties such as books or car
Legacies Gifts of money or other intangible properties such as stocks and bonds
Specific gifts Specific gifts are gifts that the Will has described in sufficient detail to determine which
specific item the testator intended to give. A testator makes a specific gift where the Will
describes the gifts as “the red Porsche with VIN number 1234” or “the money held at Royal
Bank in account number 6789.” If the property is not owned on death, the gift is said to
“adeem” and the beneficiary receives nothing.
General Gifts General gifts are those that do not describe the specific piece of property that the testator
wants to gift away. For example, if the Will says “$10,000 to Sarah if she survives me,” this
gift would be a general gift since the $10,000 can be taken from any of the property of the
estate, including cash on hand or cash proceeds of assets that are sold during the
administration of the estate as a result of the liquidation of estate assets.
Demonstrative Demonstrative gifts are gifts of money that the testator intended to be paid out of a
designated fund, but in the event that the designated fund no longer exists or has been
diminished to a point where it cannot satisfy the amount of the gift, then the gift can be paid
from elsewhere in the estate. One can think of demonstrative gifts as lying somewhere
between specific gifts and general gifts, where the designated fund or source is preferred
but the gift does not adeem if the preferred source is not sufficient or not owned by the
testator on death.
Residuary Gift A residuary gift is a gift of the residue or residuary property of the estate, which is the
portion of the estate that remains after the payment of debts, taxes, and all the other types
of gifts have been given. Thus if the Will says “the residue to James,” then James will take
whatever property was left in the estate after debts and taxes have been paid and after all
the other gifts in the Will have been honoured.
What is lapse? 3.8.2

Lapse is a legal doctrine that provides that where a beneficiary pre-deceased the testator, the gift that was
intended for the beneficiary will fail to take effect. This means that the gift will not pass to the estate of the
deceased beneficiary but will form a part of the residue of the testator’s estate. A gift of property to a named
beneficiary “if he survives me” with no alternate beneficiary indicates that the doctrine of lapse will apply
What is anti-lapse legislation? 3.8.3

In Ontario the succession law reform act provides explicit provisions which can oust the lapse doctrine where the
beneficiary of a gift is a close relative of the testator. It provides for certain situations where unless there is a
contrary intention a gift may be able to fall to a beneficiary’s estate.
Substitutional gifts
31 Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild,
brother or sister of the testator who dies before the testator, either before or after the testator makes his or her
will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if
it had been made directly to the persons among whom and in the shares in which the estate of that person would
have been divisible,
(a) if that person had died immediately after the death of the testator;
(b) if that person had died intestate;
(c) if that person had died without debts; and
(d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.
What are some will substitutes? 3.6

- Intervivos gifts
- Donation mortis causa (gift in contemplation of death)
- Intervivos trusts
- Joint tenancy (with right of survivorship)
- Designation of beneficiaries for insurance or registered plans
What is ademption? 3.8.5
“Ademption” refers to situations where a testator gifted some property to a beneficiary by Will, but for one reason
or another, the testator no longer owned the property at the time of death. In such a scenario, the gift is said to
have adeemed and the beneficiary receives nothing. Only specific gifts (i.e., gifts of specific property), described in
the Will, are subject to ademption. A general or demonstrative gift is not subject to ademption because the
property to satisfy such gifts may be taken from any part of the estate.
In Ontario, if a substitute decision maker disposes of an individual’s property, that individual’s heirs will have the
same interest in the proceeds of sale that they would have had in the property if the sale had not taken place.
Disposition of property given by will
35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific
testamentary gift in the incapable person’s will.
Proceeds of disposition
36 (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that
a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on
the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a
corresponding right in the proceeds of the disposition of the property, without interest.
What is abatement? 3.8.4

When the assets of the estate are insufficient to satisfy then abatement may occur where certain gifts under the
will are reduced to satisfy the payment of debts and liabilities. The gifts abate depending on the type of gifts in the
following order:
1. the residue of the estate is reduced first until it is exhausted;

2. general gifts abate second;
3. specific and demonstrative gifts, other than real estate, abate next and for the purposes of abatement
they are reduced pro rata together as one category of gift; and
4. specific gifts of real property abate last.
The gifts in each category abate at the same rate. This means that no one gift in a category will be abated at a
higher or lower rate than another gift in the same category.
Debt: $60k Two general gifts $30k and $90: Debt:Gifts 60:120 therefore the gifts will abate at 50% so the gifts are
reduced to $14k and $45k
What are some limits of testamentary freedom? 3.9
• the gift is contrary to public policy,

o the condition requires performance of an illegal or immoral act,
o where it restricts marriage or matrimonial life,
o where the condition limits the rights of the beneficiary to deal with the gifted property (restraint
on alienation), or
o where it discriminates on the basis of race or ethnicity or other rights protected by human rights
legislation or the Charter.
• spousal rights – a condition that attempts to control or restrain marriage is void
o Re Gelnas – where a testatory purports to make gift to a person while they are unmarried with a
condition that the gift will be revoked if that person marries was struke down
o Re Nurse – court voided a condition where testator made a gift to his married daughter but also
gave a power to the executors to withhold part of the gift if the daughter aided or supported her
husband or allowed the husband to reside with her
o Cowan v. Allen - a gift or trust fund created for the purpose of supporting the testator’s surviving
spouse as long as that spouse does not remarry is not contrary to public policy.
o Clarke v. Darraugh - A condition that prevents a minor child from residing with his or her
o parents would be against public policy
• the rights of dependants,
• gift is disclaimed by beneficiary, or
• refusal by a designated person to take on the role of trustee or executor.
CHAPTER 4 – WILL PREPARATION
What are the solicitor’s obligations when preparing wills for a client? 4.1
1. Duty to ensure the testator has capacity and is not subject to undue influence.
2. Duty to prepare the Will.
3. Duty to ensure the Will gives legal effect to the instructions of the testator.
4. Duty to ensure the Will is validly signed and witnessed. Ross v. Caunters,
5. Duty to advise against accidental revocation.
6. Where appropriate, maintain custody of the Will.
What are some issues a solicitor can face in prepare a will and what is a solution? Q1
Language Obtain an independent translator to ensure no undue influence and that communications
are accurately translated and no one is imposing their interpretation
Capacity Obtaining a capacity assessment to ensure they have testamentary capacity
Undue influence Interview clients without anyone else present to guard against undue influence
Conflict of interests Inform clients that solicitor cannot maintain confidentially as between clients on a joint
retainer. Inform where they are conflicts of interests with other third parties.
What risks are there if a couple wants a solicitor to draft their wills together?
A lawyer must avoid conflicts of interest in advising any client. In Wills practice, a conflict of interest may arise
where there is a joint retainer, such as for both husband and wife, to prepare Wills. As a general rule, the solicitor
cannot keep any matter confidential as between the two clients where there is a joint retainer. In addition, if Wills
are prepared under a joint retainer, no subsequent Will can be prepared for one of the parties without the
knowledge and consent of the other. If consent is not given, the solicitor must refuse to act in the preparation of a
subsequent Will.
What are the solicitor’s duties in taking instructions? 4.2
1. ensure that the instructions obtained accurately reflect the wishes of the testator and
2. identify and alert the testator to problems that may hinder effective administration of the estate.
What types of notes should be kept by the drafting solicitor? 4.2
• reasons for any unusual dispositive provision, such as a dependant or spouse being excluded from the
Will;
• any advice given that the client refuses to follow, such as providing for dependants or obtaining tax
advice, confirmed in writing with the client;
• reasons for any dramatic change in instructions as compared with the previous Will; and
• any concerns the solicitor has regarding the testamentary capacity of the client.
What are the risks of believing client information and not checking information? 4.2.2
It may be appropriate to verify the information provided by the testator. Copies of insurance policies, investment
statements, beneficiary designations, and title deeds may be requested. The solicitor should make reasonable
inquiries into the actual title of assets being disposed of in the Will, particularly if they are the subject of specific
gifts.
In Earl v. Wilhelm the solicitor prepared a Will on the instructions of the testator to leave the farm property to a
particular beneficiary. At the time the Will was prepared, another lawyer in the same firm had acted for the
testator in the transfer of the farm property to a corporation. The named beneficiary in the Will successfully sued
the lawyer for failure to ensure that the farm property passed to the intended beneficiary.
What discussions should a lawyer have with a client about family members? 4.2.3
• To whom is the testator providing support or assistance?

• Does the testator wish to provide for these persons in the Will
• Are there any potential claims for dependant relief?
• If parents are living, does the testator want to provide for them in the event they survive the testator?
What is a solicitor’s liability to a disappointed beneficiary?

The old common law that a solicitor is not liable to a disappointed beneficiary has been set aside. White v. Jones.
In Earl v. Wilhelm, the Saskatchewan Court of Appeal found a solicitor liable to the beneficiary of a farm property
that had been transferred by one of his law partners to a corporation. In Whittingham v. Crease the solicitor was
found to be liable to the beneficiary whose wife witnessed the Will at the request of the solicitor.
What are some attributes to look for in selecting an executor? 4.2.4.1

An executor should have the following attributes:
• be trustworthy, conscientious, and intelligent,
• has the time and inclination to act, and has agreed to act,
• be willing to hire professionals and experts to assist him or her,
• understands and will respect the testator’s instructions,
• has the confidence and respect of the beneficiaries,
• be young enough to carry out all duties under the Will and any trust of which the executor is a trustee,
• be detail-oriented enough to attend to all the “red tape” but have the big-picture savvy to put the many
tasks of administering the estate into perspective,
• ideally be resident in the same province for convenience, and
• at least be a resident of Canada for income tax reasons and to avoid the requirement of security.
What is a corporate executor?
What are the advantages of using a corporate executor? 4.2.4.3

Trust companies offer professional estate administration and have the expertise to navigate all the legal, tax, and
administrative details. A trust company has perpetual existence — an advantage over appointing specific
individuals who may die before you or fail to outlive their duties. Finally a trust company can provide for
impartiality unlike family members who may have a conflict of interest or may favour one beneficiary over
another.
What is a survivorship clause and what is its purpose? Q5

A survivorship clause can prevent a situation where two individuals die within a short period of time of each other
resulting in double administration and probate fees.
What is the current law of in terrorem clauses? 4.4.3
An in terrorem clause is often used to discourage beneficiaries from litigation. A testator may want to include a
gift that is conditional on the beneficiary not taking any action to challenge the validity of the Will or any provision
in the Will. For this clause to be enforceable generally:
• The conditions are limited to challenges to the validity of the Will and do not attempt to oust the
jurisdiction of the court to interpret the Will or related matters over which the court has exclusive
jurisdiction.
• They are not void for public policy.
• There is a specific gift over or alternate gift in the event the beneficiary challenges the Will (i.e., the gift
cannot simply fall into residue or increase the share of other residual beneficiaries but a direction that this
is to occur is sufficient).
What is the Rule in Saunders v. Vautier? 4.4.4

The rule in S v. V. allows for: one or more beneficiaries, all of full legal capacity, and who is, or are collectively,
entitled to all the beneficial interest in the trust to apply to have the trust terminated and the assets transferred
even though the trust instrument calls for final payment to be delayed.
If the beneficiaries have full legal capacity and be of age and the persons applying have full beneficial interest in
the trust property they may apply to terminate the trust.
Avoiding the Application of Saunders v. Vautier

If XXX wishes to avoid the application of S.v.V. then they may wish to provide for a contingent interest of such as a
gift over. A technique would be to create a contingent interest in favour of a minor or unborn person. Another
option would be to give the trustee the discretion to give a part of the trust over to a clearly defined class of
beneficiary with the class being large enough so to make it difficult to get everyone to agree to the termination.
What is per stirpes vs. Per capita distribution? 4.4.8, 4.4.9

Per stripes – dividing a particular gift or fund among the issue of an individual by stocks or by roots.
Per capita – a method of dividing a gift or fund among a number of individuals
CHAPTER 5 – INTESTACY
If someone dies without a will what happens to their estate?

Someone will have to apply to the court for probate as an administrator and won’t have the authority to deal with
assets until they have received a certificate of appointment. In Ontario the Estates Act provides a list of priority of
individuals applying to be an administrator.
To what persons administration shall be granted
29. (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove
the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with
whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
Why is it important to make a Will? 5.1

A Will determines how the estate of an individual will be administered and distributed. Where an individual dies
without a Will, he or she is said to die “intestate,” meaning without a Will, and the estate will be divided and
distributed according to a formula set out in the law. Having a will can:
- Permit a choice of beneficiaries
- Provides choice of disposition of specific assets
- Provides choice of administrator
What are some reasons people avoid getting a will? 5.2
- Discomfort about death and dying

- Unresolved issues about wishes or family relationships
- Cost
- No perceived deadline
- Procrastination or laziness
What happens if two people die closely to each other?

Where two or more individuals are in a common accident, or otherwise die within a short time of each other, the
order of death can significantly affect the distribution of property whether there is a Will or one or more of the
persons dies intestate. However, the outcome may be more arbitrary on intestacy as Wills are often drafted to
provide for more appropriate results where there is a simultaneous death or death within 30 days.
Where the order of death can be ascertained, and the second to die is a beneficiary of the estate of the first to die,
the assets of the individual who died first will go through two estates before being distributed to a beneficiary and
potentially subject to probate fees twice. In addition to the double probate fee burden, in some circumstances
seemingly inappropriate results with respect to the distribution of property can result.
How to determine the order of death?
Where the order of death cannot easily be determined, forensic evidence may be used to obtain a declaration as
to which of two persons died first. In Adare v. Fairplay, a husband and wife died in their home of carbon monoxide
poisoning caused by a broken gas main in front of their home. It was found that the husband died first based on
autopsies establishing the onset of rigor mortis. The statutory presumption, discussed below, did not apply since
the order of death could be ascertained on the evidence.
What happens if two people die and it cannot be determined who died first?
In Ontario, if the order of death cannot be determined, each decedent is deemed to have survived the other in
determining the distribution of the estate of the decedent. For example, in our childless couple case, the husband
would have been deemed to survive the wife in determining a distribution of the husband’s estate and the wife
would have been deemed to survive the husband in determining the distribution of her estate. Thus, neither
estate would go through the estate of the other, double probate would be avoided, and a potentially more
appropriate distribution would be obtained.
Survivorship SLRA
Succession
55 (1) Where two or more persons die at the same time or in circumstances rendering it uncertain which of them
survived the other or others, the property of each person, or any property of which he or she is competent to
dispose, shall be disposed of as if he or she had survived the other or others.
Simultaneous death of joint tenants
(2) Unless a contrary intention appears, where two or more persons hold legal or equitable title to property as
joint tenants, or with respect to a joint account, with each other, and all of them die at the same time or in
circumstances rendering it uncertain which of them survived the other or others, each person shall be deemed, for
the purposes of subsection (1), to have held as tenant in common with the other or with each of the others in that
property.
What are some drawbacks of not having a will?

- Additional administrative requirements
- Issues with minors inheritances being paid into court
- Delay in administration of estate and distribution to beneficiary
o In Ontario no distribution may be made until one year after death
- Additional tax costs
o Failure to maximize the spousal rollover for capital property and maximise the use of capital
gains exemption
- Failure to engage in property tax, probate, and estate planning
What happens if minor children receive an inheritance (not in trust)? 5.2.7

Without a will or provisions for inheritance for minor children the Public Guardian and Trustee may get involved in
the management of funds and the inheritance may be paid into court. As a result, the funds may not be accessible
until the minor attains the age of 18 and upon attaining 18, the beneficiary receives the amount in full. This may
have severe unintended consequences depending on an individual and their family’s circumstance.
CHAPTER 6 – CLAIMS AGAINST ESTATES BY FAMILY MEMBERS
Only family members actually dependant upon the False 6.5.2 ” Generally a spouse, common-law
deceased are entitled to claim dependant’s relief spouse,85 and minor child of the deceased are
considered dependants and therefore
are eligible to make a claim for dependant relief.
A spouse and minor children have a right to make an True 6.5.3, 6.5.4
application for dependant’s relief in all jurisdictions in
Canada
Common law couples are not recognised for the False – a surviving common law spouse may claim
purpose of property rights in all provinces but are dependant’s relief is most jurisdiction but not in
recognised for the purposes of dependant’s relief in Quebec, Nova Scotia, or Newfoundland.
every jurisdiction in Canada
Federal legislation in Canada has forced the provinces False. The federal legislation forced the provinces to
to grant equal rights to both same-sex and opposite sex recognise same-sex marriage.
married spouses
Except in BC and Nova Scotia, the rights of dependant’s True 6.5.10
relief is in addition to any rights of distribution on
intestacy
A marriage contract or separation agreement is False 6.5.11 (???)
effective to protect the estate of a deceased spouse
from a claim for dependant’s relief
A surviving spouse may make an application in respect False: property rights of a surviving spouse, where they
of property against the estate of the deceased spouse if exist, are not conditional on “adequate provision” this is
the spouse has not been adequately provided for in the a condition on dependant’s relief 6.3, 6.5.1
Will
Following the Tataryn decision in BC, courts in some of False – in Tataryn and cases following it considering
the other jurisdictions in Canada have been willing to moral obligation, the legal obligation is given priority.
give equal weight to both a legal and a moral obligation 6.5.15
of the deceased when considering a claim for
dependant’s relief
The right for a spouse and other family member to True 6.9
make a claim against an estate either under family law
(for example, the claim of a spouse for property) or for
dependant’s relief, is subject to expiration after a
certain time period called a “limitation period” but
rights may never expire if the commencement of the
limitation period runs from the date probate is granted
and probate is not obtained
What takes priority between spouses right to property and distributions under the Will? 6.1
In Ontario, spousal rights to net family property take precedence over any distribution in the Will or on intestacy.
Priority of spouse’s entitlement
(12) The spouse’s entitlement under section 5 has priority over,
(a) the gifts made in the deceased spouse’s will, if any, subject to subsection (13);
(b) a person’s right to a share of the estate under Part II (Intestate Succession) of the Succession Law Reform Act;
(c) an order made against the estate under Part V (Support of Dependants) of the Succession Law Reform Act,
except an order in favour of a child of the deceased spouse. R.S.O. 1990, c. F.3, s. 6 (12).
What is Ontario’s view of a spouse “double dipping”? 6.1

In Ontario, it is possible to make a claim for property and make a further claim for dependant relief with the result
that a surviving spouse may be entitled to no less than the provincial formula for property but may be entitled to
an additional amount under dependant relief.
What is a spouse’s right to property? 6.2

In addition to rights to support and rights to the matrimonial home during lifetime, a surviving spouse has a
potential claim against the estate of the deceased spouse or partner. These rights generally include rights to make
a claim in respect of division of property and a claim in respect of support where a spouse has not been adequately
provided for. In Ontario, the claim in respect of property is subject to a specific formula that can be deviated from
only at the discretion of the court where there are special circumstances.
What is the right to support? 6.2

A spouse and dependent child and certain other family members may also have rights to support that are
enforceable during lifetime or on death. The right in respect of support from a deceased person is generally
available under dependant relief legislation.
What is the definition of spouse in Ontario for property claims? 6.3.4

Definition of Spouse: Persons who are legally married. Common-law spouses are not recognized for purposes of
this statute.
What is the limitation period in Ontario for a married spouse’s relief claim? 6.3.4
Limitation Period: Six months from the date of death. If an election is not made, the surviving spouse is deemed to
have elected to take under the Will or intestate provisions.
Limitation period SLRA
61 (1) Subject to subsection (2), no application for an order under section 58 may be made after six months from
the grant of letters probate of the will or of letters of administration.
What rights does a married spouse in Ontario have to matrimonial property? 6.3.4
Rights: Upon death, whether the deceased left a Will or the estate is distributed under the intestacy rules, the
surviving spouse may elect to take his or her entitlement under the Will or intestacy, or take an equalization
payment under the Family Law Act.
How can you protect the inheritance of a beneficiary from potential claims of a spouse? 6.4.3
- Generally gifts and inheritances are excluded from the calculation of net family property
- The growth of the gift/inheritance can be protected if the transferor makes it clear that any growth
should be excluded
- A properly structured testamentary trust can help shield assets from a beneficiary’s spousal claims
o There is nothing to prevent the child from sharing the inheritance with the spouse or becoming
subject to the influence of the spouse regarding the funds
o A protective testamentary trust may be appropriate
 It can be a trust for the child during their lifetime with a gift over to the grandchildren or
other beneficiaries on his or her death to preserve the estate
How can you try to protect an estate plan from potential claim of a spouse? 6.4.2
- One strategy is to ensure that the surviving spouse receives enough to discourage a claim or to provide for
at least as much as the spouse would be entitled if a claim were made to decrease the risk that a claim
would be successful
o However this is difficult because the amount to discourage or avoid a claim cannot be calculated
precisely
- Another method may be entering into a marriage contract/domestic contract/pre-nuptial agreement
o A marriage contract may be set aside on any number of grounds, including lack of independent
legal advice, undue influence, and failure to fully disclose financial information.
- The use of an inter vivos trust may also be effective to shelter assets from a claim since generally the
assets in the trust will not form part of the estate. Beneficiary designations for insurance and registered
plans and the use of jointly held property with a right of survivorship may also keep assets outside the
estate of the deceased spouse and provide some insulation from a claim
What factors might be relevant in determining that amount of a spouse’s property claim on a deceased spouse’s
estate?
- The nature, type, and amount of property owned at the date of marriage and at the valuation date
- Whether there is a marriage agreement that changes the parties’ rights
- The definition of net family property under the Family Law Act
- How inheritances or gifts are structured for the deceased spouse
- And there any other circumstances a court may consider in each particular circumstances
Who can generally make a claim on the estate for support and what process is undertaken to determine
whether there is a claim? 6.5.1
- A child, spouse or certain family members to whom the deceased may have had a support obligation may
be entitled to make a claim against the estate under dependant relief legislation for support or
maintenance.
- Relief is available if the claimant qualifies as a dependant under the SLRA
- The three step process:
o Does the person making a claim qualify as a dependant?
o Was adequate provision made in the Will of the deceased or as a result of intestate distribution?
o What form or relief and what amount of relief is appropriate?
Who qualifies as a dependant? 6.5.2
Under the SLRA a dependant:
“dependant” means,
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately
before his or her death; SLRA 57
In Ontario a former spouse or partner (i.e. divorced spouse) is also entitled to apply for dependant relief in certain
circumstances.
What are common law spouses rights with dependant relief? 6.5.4
Under SLRA’s provisions for dependant relief, common law partners have a right to make a claim for dependant
relief on the same basis a spouse in all jurisdictions.
“spouse” has the same meaning as in section 29 of the Family Law Act and in addition includes either of two
persons who were married to each other by a marriage that was terminated by divorce. (“conjoint”) R.S.O. 1990,
c. S.26, s. 57; 1999, c. 6, s. 61 (1, 2); 2005, c. 5, s. 66 (3-8); 2006, c. 19, Sched. C, s. 1 (1); 2016, c. 23, s. 71 (8); 2017,
c. 8, Sched. 29, s. 1.
definitions
29 In this Part,
“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à
charge”)
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not
married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s
Law Reform Act. (“conjoint”)
R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30; 2016, c. 23, s. 47 (1).
When may a testator be required to pay dependant relief to a child? 6.5

In Ontario a testator may be required to pay dependant relief for a child (or a person who was treated as a child by
the deceased) if that child is a minor, enrolled in a fulltime program of education, or is unable by reason of illness,
disability or other cause to withdraw from the charge of his or her parents.
Obligation of parent to support child FLA
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for
his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017,
c. 34, Sched. 15, s. 1.
Same
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has
withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).
Ontario: An adult child may qualify for dependant relief if the child is a full-time student and has not withdrawn
from parental control or the deceased parent was actually providing support immediately before death.
Other than spouse or children who else may have a claim as a dependant? 6.5.6.
In Ontario brother or sister, parent, grandparent, or grandchild of the deceased may apply if the deceased was
actually providing support immediately before death.
What discretion or type of awards can a court award? 6.5.8

A court will generally have wide discretion to make any order that they feel is necessary to provide the dependant
with adequate support. This is generally a lump sum payment, an annuity for a limited period or for the life of the
dependant, the establishment of a trust for the benefit of the dependant, or a combination of these.
What criteria will a court consider in determining the requirement and quantum of dependant relief? 6.5.8.2
The court will have to determine whether the claimant is receiving an adequate under the will or intestacy. The
court has wide discretion in making its determination included the lists found in s62 of SLRA.
The court will look at:

- needs and standard of living of the dependant;
- obligations of the deceased to others, including other dependants;
- relationship between the dependant and the deceased and its duration;
- reasons the deceased did not provide for the dependant;
- needs of other persons;
- size and nature of the estate;
- the conduct of the applicant;
- any agreement, including a marriage contract, between the deceased and the dependant;
- whether the dependant is receiving support from others, including government support;101
- any financial contribution made by the dependant to the deceased; and/or
- intention of the testator.
Determination of amount
62 (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of
the application, including,
(a) the dependant’s current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed
standard of living;
(f) the measures available for the dependant to become able to provide for his or her own support and the length
of time and cost involved to enable the dependant to take those measures;
(g) the proximity and duration of the dependant’s relationship with the deceased;
(h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial
contributions;
(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s
property or business;
(j) a contribution by the dependant to the realization of the deceased’s career potential;
(k) whether the dependant has a legal obligation to provide support for another person;
(l) the circumstances of the deceased at the time of death;
(m) any agreement between the deceased and the dependant;
(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or
agreement or under court order;
(o) the claims that any other person may have as a dependant;
(p) if the dependant is a child,
(i) the child’s aptitude for and reasonable prospects of obtaining an education, and
(ii) the child’s need for a stable environment;
(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental
control;
(r) if the dependant is a spouse,
(i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an
obvious and gross repudiation of the relationship,
(ii) the length of time the spouses cohabited,
(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable
by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen
years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse
had devoted the time spent in performing that service in remunerative employment and had contributed the
earnings to the family’s support,
(vi.1) Repealed: 2005, c. 5, s. 66 (10).
(vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child,
(viii) the desirability of the spouse remaining at home to care for a child; and
(s) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. S.26, s. 62
(1); 1999, c. 6, s. 61 (3-5); 2005, c. 5, s. 66 (9-11).
What assets can be used to satisfy orders? 6.5.9

Generally all property owned by the deceased at the date of death is available to satisfy a court order under
dependant relief legislation
Ontario: Section 72 of Ontario’s Succession Law Reform Act casts a broader net and
deems the following to be included in the estate of the deceased and available to be
discharged for payment of a dependant relief order:
• gifts mortis causa (made in anticipation of and condition on the donor’s death);
• deposits in the name of the deceased in trust for another, or in joint names with the deceased, including
those in a bank, savings office, credit union, or trust company;
• property transferred by the deceased into joint tenancy and owned at death;
• property transferred by the deceased in trust or to another where the transfer was revocable by the
deceased;
• life insurance proceeds on any policy owned by the deceased; and
• pension benefits or rights, including RRSPs and RRIFs passing under a beneficiary designation.
What is Tatryn and what does it mean? 6.7

Tatryn discusses the existence and enforcement of a moral obligation as a basis for dependant relief claim. In
Tataryn v. Tataryn Estate, the Supreme Court found that dependant relief legislation must be interpreted
according to contemporary standards and read in the light of modern values and expectations and that what is
“adequate, just and equitable” must be viewed in the light of current societal norms.
In Ontario, the Cummings decision of the Ontario Court of Appeal examined Tataryn, finding that “adequate
provision” was not limited to a needs-based economic analysis in determining a dependant relief application
and that the moral duty was a relevant consideration in Ontario. The applicants were the two children of the
deceased. The children were in need of support, but the court refused to set aside the second wife’s beneficial
ownership in the matrimonial home, even though the wife was not in need of support, on the basis of a moral
obligation to the wife. The question of moral obligation was to be examined in the light of society’s expectations
of what a judicious person would do in the circumstances.
The Tataryn case enlarged the powers of the courts to grant dependant relief by allowing courts to consider
applications with reference to the deceased’s moral duties toward the applicant. There is a concern within the
estate planning community that Tataryn gives the courts an overly broad power to rewrite the Wills of testators,
thereby introducing great uncertainty in the field of estate planning
What are the limitation periods for property claim of a spouse or a dependent’s claim?
Property/Spousal claim – 6 months from date of death
Dependant relief claim – 6 months from date of grant of probate or administration
CHAPTER 7 – QUEBEC ISSUES FOR CANADIANS OUTSIDE OF QUEBEC
What is a notarial will and what is its benefit? 7.1.1

A notarial Will, which can only be prepared by a notary, has a unique status compared with other Wills: it is
effective immediately upon the death of the testator and does not require probate.
A notarial will is prepared under the civil law system by a person licensed as a notary. 7.3.7
What is a notary in Quebec? 7.1.1

Notaries can give legal advice to all parties or sides in a matter, draft legal documents, authenticate those
documents, and keep formal records of transactions that can be relied upon in future. A large part of a notary’s
practice consists of transferring real property, called “immovable” in Quebec, and a secondary area of practice is
Wills, successions, and estate planning.
What happens if there are is real property in Quebec? 7.2.1

The law of the province or territory may apply to real property or an interest in real property located in that
jurisdiction. If an individual owns real property in Quebec, it will be necessary to comply with the laws of
succession in the province to deal with the property on the death of the owner.
The rules relating to mandates in the event of incapacity are quite unique in Quebec, and if property, particularly
real property, is owned in the province it may be advisable to have a mandate prepared under Quebec law
specifically limited to property in the province
Does a Will need to be resealed in Quebec? 7.2.1

A grant of probate from the jurisdiction where the deceased was resident and domiciled at death does not need to
be “resealed” in Quebec in order to permit the executor or administrator to deal with the property and either sell
it or distribute it to the beneficiaries. There is no procedure in Quebec similar to resealing or obtaining an ancillary
grant of Letters Probate or Letters of Administration. The probated Will may be deposited with a notary, who then
issues a certified copy. It is also important to verify if the foreign executor or administrator’s authority extends to
property situated in Quebec; if not, then a liquidator should be appointed by the Quebec court to deal with the
Quebec property.
What is the law of joint ownership of property in Quebec? 7.2.1

As it is not possible to have a right of survivorship in Quebec, any joint ownership of real property (or other
property governed by the laws of Quebec) will be in undivided co-ownership, which is comparable to the concept
of tenants-in-common, and the interest in the property of any deceased owner will pass through his or her estate
and not to the surviving joint owners.
What issues should be aware of if there is a testator relocating from Quebec?

Whenever an individual moves from one province or territory to another, changing residence and domicile, a
different set of laws will apply to his or her property and civil rights. For example, this may change or affect the
estate planning, planning for incapacity, rights under family law legislation, and rights and obligations of a
common-law relationship. It is important for individuals to review their Wills, powers of attorney for property, and
personal care and health care directives with a lawyer in the new jurisdiction to determine whether changes need
to be addressed. This is particularly true for a move to or from the province of Quebec, where laws are so
unique.
Individuals who formerly lived in Quebec may have insurance policies issued in Quebec. Insurance policies issued
in Quebec have unique characteristics that should be examined. In addition, there may be a marriage contract
made under Quebec law that could affect the devolution of the estate.
How would you advise someone leaving Quebec?

As soon as residence in the new jurisdiction is established there should be
- ILA
- Review of prior wills and powers of attorney
- Review any potential issues with joint survivorship and jointly owned property or beneficiary designations
for registered plans. Appropriate actions should be taken to address the difference results in other
jurisdictions. 7.3.10
- Obtain legal advice on how legal title on home is to be taken – note that there is no right of survivorship in
Quebec
- Married couples or spouse should seek legal advice to confirm what their rights are and whether their
relationship continues as is (i.e civil unions inside and outside Quebec)
- Marriage agreement should be reviewed
- Estate planning for estate planning for incapacity should be reviewed
What if someone dies with real property in Quebec?

A grant of probate from the jurisdiction where the deceased was resident and domiciled at death does not need to
be “resealed” in Quebec in order to permit the executor or administrator to deal with the property and either sell
it or distribute it to the beneficiaries. There is no procedure in Quebec similar to resealing or obtaining an ancillary
grant of Letters Probate or Letters of Administration. The probated Will may be deposited with a notary, who then
issues a certified copy. It is also important to verify if the foreign executor or administrator’s authority extends to
property situated in Quebec; if not, then a liquidator should be appointed by the Quebec court to deal with the
Quebec property.
What are two differences with respect to the regime of matrimonial property on death in Quebec as compared
to that in other jurisdictions?
Two main differences with respect to matrimonial property regime on death

- Rights to family patrimony cannot be altered by contract whereas property rights outside Quebec
generally may be altered by marriage control or domestic agreement
- Only death, Quebec is the only jurisdiction where the rights to property affect both the surviving spouse
and the heirs of the deceased spouse – in other jurisdictions the right to property on death, where it
exists, is solely the right of the surviving spouse to make a claim 7.3.3
How does Quebec deal with marriage and civil unions? 7.3.2
In the province of Quebec, couples who are united by traditional marriage or by “civil union” are both accorded
identical rights and obligations. The code recognises civil unions as a form of contract that can be entered into by
either same-sex or opposite-sex couples in order to have access to the identical rights and obligations that exist
between married couples.
What risks may there be if you’re in a civil union in Quebec moving to another jurisdiction? 7.3.2
While those in a civil union have identical rights to family patrimony, distribution on an intestacy, and dependant
relief, there are some differences. Civil union is dissolved by agreement made before a notary, not divorce. In
addition, although couples married in Quebec will be recognised as married in other provinces in Canada, a civil
union may not be recognised as a marriage per se, and this may have consequences where the parties own
property outside Quebec in jurisdictions where their status may be uncertain. However, persons in a civil union
may qualify to be recognised as common-law couples where these are recognised in other provinces or territories
in Canada.
How does Quebec law deal with family patrimony?

Married couples and those in a civil union in Quebec have economic rights to the family patrimony on separation
“from bed and board,” divorce, annulment, or death. Essentially the couple must divide the value of the family
patrimony accrued during the marriage or civil union upon such events and these rights take precedence over any
rights on intestacy, under the Will, or any agreement to the contrary It includes the following:
• all family residences and furnishings but excluding collector’s items,

• vehicles used by the family, and
• benefits under a retirement plan except plans providing death benefits to the surviving spouse.
One exception from the family patrimony is property received by one of the spouses by inheritance or gift during
marriage. There are also deductions for property owned at the date of marriage and debts. The calculation of the
value of family patrimony is similar to the manner in which net family property is equalised under Ontario law. The
value of family patrimony that each spouse owns at the relevant date for division (whether the date of separation,
divorce, or death) is added together and divided by two. The value of family patrimony owned individually by each
spouse is then compared. The spouse who has less than one-half of the aggregate family patrimony owned by both
is entitled to a payment from the other or from the estate in the case of death. There is no specific right in the
division of specific property per se. Rather, the spouse entitled to a payment becomes a creditor of the other
spouse, or the estate, for the amount of the shortfall.
What is unique about Quebec for a claim for family patrimony? Who can make the claim? 7.3.3
In Ontario, and all other common-law jurisdictions except Newfoundland and Labrador, only the surviving spouse
may make a claim in respect of property on death. However, in Quebec (and Newfoundland and Labrador), either
the surviving spouse or the heirs of the deceased can make a claim in respect of family patrimony. This could result
in the surviving spouse being entitled to a payment or transfer of property from the heirs or the heirs of the
deceased being entitled to a transfer of property from the surviving spouse.
What is compensatory Allowance and when can that claim be made?? 7.3.4
In addition to the partition of family patrimony, a surviving spouse may be entitled to a compensatory allowance in
recognition of his or her contribution in property or services that enriched the spouse. The right to compensatory
allowance must be made in the year following death and is only available to a surviving spouse.
What are the rules to beneficiary designations in Quebec for insurance and registered investments? 7.3.8
In the province of Quebec, beneficiary designations may be made for death benefits of life insurance policies, but it
is not possible to designate a beneficiary for any registered plan under the Income Tax Act, such as an RRSP, RRIF,
TFSA, or RDSP. Rather, these assets will pass according to the law of succession in the province of Quebec and
cannot be paid directly to a beneficiary.
Where an individual is resident and domiciled in Quebec, it is not possible to name as beneficiary of an RRSP, RRIF,
TFSA, or RDSP even a beneficiary who is living outside Quebec. However, it is possible for an individual resident
and domiciled outside Quebec to name a resident of Quebec as a beneficiary of his or her registered plan.
What is a de facto souse? 7.3.9

Couples who are not legally married or have not entered into a civil union have virtually no rights or obligations
arising from their relationship in the province of Quebec. On the death of one de facto partner, the surviving de
facto partner is not entitled to family patrimony, compensatory allowance, division of property under any
matrimonial regime, distribution on an intestacy, or dependant relief. In addition, since the family patrimony rules
do not apply, any movable property owned by the couple (tangible personal property, i.e., household furnishings
and other personal effects) will be deemed owned in undivided co-ownership unless the surviving spouse can
prove he or she is the sole owner of such property
What’s the rules in Quebec for jointly held property? 7.3.10

Jointly held property in Quebec is described as being divided or undivided co-ownership. In both types of co-
ownership, there is no right of survivorship. Accordingly, it is not possible for the surviving joint owner to
automatically inherit the interest of a deceased joint owner by operation of law as it is in the commonlaw
provinces. Rather, the property is treated as what in common-law jurisdictions would be called tenants-in-common
and the share of the deceased joint owner will form part of the estate of the deceased owner and will pass
according to the law of succession in the province of Quebec either under the Will or on an intestacy or otherwise
under the laws of succession in Quebec.
What is the corresponding term in Quebec

Common law spouse De facto spouse 7.3.9
Springing power of attorney Mandate in anticipation of incapacity 7.3.11.1
Executor or administrator Liquidator 7.3.6
Continuing power of attorney There is none per se in Quebec
Trust Trust 7.3.1
CHAPTER 8 - OBTAINING THE GRANT OF PROBATES
When does the authority of an executor named in a will or an administrator arise? 8.1.1
The authority of the executor appointed under the Will arises immediately upon the death of the testator and
derives from the Will itself. Where there is no will, the administrator of the estate must obtain letters of
administration in order to be appointed as administrator. The administrator of an estate has no authority until the
grant is given. Until an administrator is appointed, the authority to manage the estate is lodged with the court.
What is Ontario’s language with certificates/grants? 8.1.2

In Ontario, the process of obtaining probate is called obtaining a “certificate” and letters probate or letters of
administration are called a “certificate of appointment of estate trustee with a will” or “certificate of appointment
of estate trustee without a will”
What are the benefits of obtaining the grant of probate? 8.1.3

While it may be possible to administer an estate without a grant of probate, there may be good reason for doing
some such as:
- protect the executor from a subsequent challenge and liability

- ensure certain claims expire
- to conduct or defend litigation
- to resolve any dispute over the validity of the will
When are you required to get probate? 8.1.4

Obtaining probate is necessary where:
- there is no will
- to deal with real property
- to deal with property and third parties
- to conduct or defend litigation on behalf of the state or the deceased
- to protect the executor from potential liability
- to resolve any dispute over the validity of a will
When does the limitation period start to run for claims against an estate? 8.1.3.2
Claims in respect of property by a spouse or dependant relief claim may expire only after the grant. If there is no
grant, the right to make these claims may never expire although depending on the claim the ultimate limitation
period may still run under a certain amount of time.
Why do third parties require probate? 8.1.4.3

Banks, financial institutions, transfer agents for shares of public corporations, and other third parties will not
permit a transfer of property into the name of the executor or administrator without the grant because of
potential liability. There will be no protection from the claims of others in the event property is transferred on the
instructions of an executor without a grant if subsequently there is a successful challenge to his or her authority
under the Will.
What protection do third parties have when relying on the authority of the executor? 8.1.4.3
If an estate has been probated there is statutory protection for acting on the instructions of the
executor/administrator whose appointment is confirmed in the grant, even if subsequently the grant is revoked or
otherwise set aside.
There is protection under the Bank Act and under the Trustee Act of Ontario.
What are some assets that do not require a grant of probate? 8.1.6
The following items may be transferred without the grant:
• Canada Pension Plan survivor benefit,
• personal effects,
• automobiles (with some exceptions — for example, in British Columbia, probate is required for vehicles
with a value in excess of $25,000),
• shares of private corporations, and
• any amounts passing outside the estate by virtue of:
o property held jointly with a right of survivorship as long as the deceased is not the sole surviving
owner immediately prior to death,
o life insurance passing under a beneficiary designation, or
o registered plans such as an RRSP, RRIF, or TFSA passing under a beneficiary designation.
Where is the application for probate usually made? 8.2.1

The application for probate is normally made in the province where the deceased resided at the time of death was
domiciled at the time of death.
What is the role of the estate registrar in Ontario? 8.2.2

The district court where the application for the grant is made may be managed by a local estate registrar, who is
responsible for making administrative decisions and supervising the application procedure. The local registrar may
be required to give notice to a central registrar for the province of any application for probate in order to ensure
multiple grants are not given for the same deceased person. In Ontario, for example, no grant may be issued until
the local registrar has received a certificate from the Estate Registrar for Ontario that no other application for a
grant has been made for that deceased person
What is the role of the Court Official and Judge? 8.2.3

The application for the grant along with all supporting documents, including security or proof of security (where
required) and payment of probate fees, is usually fi led on an over-the-counter basis at the relevant court office.
Once the application is fi led, the court officials will review the application and the documents to make sure
everything required is included and that the Will is in a proper condition and has been executed in accordance with
the provincial requirements.
Once the application is complete and errors or deficiencies addressed, a judge will normally review the application
and sign the order to issue the grant on an in camera basis — that is, without any public hearing or even the
requirement that anyone appear in person before the judge. This non-contentious process of obtaining a grant
is called “proving the Will in common form.”
What is proving a will in common form vs. will in solemn form? 8.2.4
Where the Will is proved in common form, it is valid and third parties may rely on the authority of the grant unless
it is subsequently revoked. A grant proved in common form may be subject to challenge at a subsequent time by a
formal action brought to revoke the grant of probate on the basis that the Will was not valid.
A Will may also be proved in solemn form, in which case it cannot be challenged subsequently except in limited
circumstances. This normally occurs only where there is a dispute over the validity of the Will or there is some
question as to the validity of the Will that the executor wants reviewed by the court. Proof in solemn form protects
the Will from a later action to revoke the grant unless it is discovered that the Will was revoked or the grant in
solemn form was obtained by fraud. Due to the permanent nature of the grant proved in solemn form, the process
is more formal
What are the types of grants in Ontario? 8.3
8.3.1 Letters Probate (in Ontario, Certificate of This is a grant given by a court certifying that the Will
Appointment of Estate Trustee with a Will) that is attached to the grant has been duly proved and
registered with the court and verifying the executor’s
authority named under the Will.
8.3.2 Letters of Administration (in Ontario, Certificate of This is a grant where the deceased died intestate. When
Appointment of issued, this grant authorises
Estate Trustee without a Will) the person appointed, called the “administrator” (or, in
Ontario, the estate trustee without a Will), to
administer the estate.
8.3.3 Letters of Administration with Will Annexed (in This is similar to Letters Probate since there is a Will but
Ontario, Certificate of Appointment of Estate Trustee made to a person other than an executor named in the
with a Will) Will. This may be required if the executor has died, is
unable to act, or has renounced his or her appointment.
The application process is similar to that for Letters

Probate, although there may be additional
requirements. For example, in Ontario, security is
required if the applicant is not named as the executor in
the Will, although, as in most cases, the court has the
authority to waive this requirement. As with an
intestate estate, someone must apply to administer the
estate and be appointed by the court as part of the
probate process (see 5.6, Appointment of Administrator
of an Intestate Estate).
8.3.4 Administration De Bonis Non Administratis (in Where Letters of Administration have already been
Ontario, Certificate of Appointment of Succeeding issued and it is necessary to appoint a new
Estate Trustee without a Will) administrator, the original grant must be surrendered
and a new application for a grant made.
8.3.5 Administration De Bonis Non Administratis with This is similar to where Letters Probate have been
Will Annexed (in Ontario, Certificate of Appointment of issued and the sole remaining executor dies. The court
Succeeding Estate Trustee with a Will) will appoint another person to administer the estate.
This grant is not issued if the executor dies before
Letters Probate were obtained, in which case Letters of
Administration with Will Annexed should be issued (see
8.3.3, Letters of Administration with Will Annexed (in
Ontario, Certificate of Appointment of Estate Trustee
with a Will).
8.3.6 Letters of Administration Pendente Lite (in This is a grant of probate made by the court in order to
Ontario, Certificate of Appointment of Estate Trustee preserve the assets of the estate when there is a legal
during Litigation) action to resolve a dispute over the validity of the Will.
Pendente lite means “during litigation.”
8.3.7 Ancillary Letters Probate (in Ontario, Certificate of Appointment of Estate Trustee with a Will)
Ancillary Ancillary Letters Probate are issued where the original
grant has been issued by a foreign non-British court and
the deceased owned property in the province. This
grant is required in order to administer the assets
located in the province.
What is required in an application for probate in common form? 8.5.1

The following documents will usually be required for the application:
• the formal application requesting the court to issue the grant,
• the original signed Will (or notarial copy of a notarial Will from Quebec),
• proof that notices of the application, and prescribed information, have been sent to all beneficiaries and
other parties as required,
• an affidavit of execution of the Will (where required),
• a list of assets, and the fair market value, at date of death,
• a listing of liabilities at date of death,
• a listing of beneficiaries and their entitlement,
• the renunciation of any executor who is not a party to the application,
• proof of bond or security if the executor is resident outside Canada, and/or
• payment of the relevant probate fees or taxes.
What if a Willi s lost? 8.5.2

It is necessary to file the original signed Will in order to obtain probate. However, if the original cannot be found,
the rules usually provide for proving a lost Will, although this will require additional steps and paperwork
What is the Estate Information Form?

An Estate Information Return must be fi led with the Ministry of Finance within 90 calendar days following the
issuance of the Certificate of Appointment of Estate Trustee.
What is required for application for grant of administration? 8.5.5

If an application for a grant of administration is required, much of the same information is required as for a grant
of probate. Requirements include:
• an affidavit stating that a Will could not be located, with applicable evidence of efforts made, and
explaining the applicant’s relationship to the deceased;
• where the named executor has renounced, a renunciation signed by the executor or evidence as to why a
named executor is not able to accept the appointment;
• renunciation by those with priority over, or equal priority to, the person applying for the grant;
• confirmation that notices have been delivered to all intestate beneficiaries entitled to share in the estate
(see Chapter 5) and others as required by the applicable legislation;
• asset, liability, and beneficiary information as above;
• proof of bond or other security if applicable; and
• payment of the relevant probate fees or taxes.
What is an affidavit of execution? 8.5.3

In some provinces, the solicitor who prepared the Will prepares an Affidavit of Execution shortly after the Will has
been executed and keeps it with the original Will. If this has not been done, the Affidavit of Execution may need to
be obtained prior to obtaining the grant. Special rules exist in the event the Affidavit of Execution cannot be
obtained from the witness.
What are the notice requirement in an application for probate? 8.5.4

Generally the rules are similar and require notice be sent to:
 all beneficiaries, whether specifically named or a class of beneficiaries,
 those who would be beneficiaries if there was an intestacy (British Columbia),
 spouses and dependants entitled to apply to vary the Will,
 a surviving spouse who has been separated from the deceased for a specified period,
 if the beneficiary is a minor, to the minor’s parent(s) or guardian(s) as well as the province’s Public
Guardian and Trustee (Ontario: the Children’s Lawyer), and/or
 if the beneficiary is or may be an incapable adult, the adult’s legal representative if there is one (e.g.,
property guardian or, in some cases, an attorney under an enduring power of attorney) as well as the
province’s Public Guardian and Trustee.
When may security be needed to be paid for administration? 8.5.7
When there is no Will, security is required for all personal administrators. The court has discretion to waive
security where it is satisfied that the interests of all beneficiaries and creditors will be protected. Security may be
waived where:
• there are no debts,

• the value of the estate is small,
• the applicant is the beneficiary, or
• all parties or their representatives are potentially beneficially interested in the estate consent.
Security may be in the form of a bond, or other arrangements may be possible depending on the assets. If the
beneficiary(ies) include minors or an incapable adult, security will usually be required.
When is it possible to probate without paying the probate fees? 8.5.7.1

Some provinces provide special rules for obtaining the grant in advance of paying probate fees. For example, in
Ontario, the grant may be issued before payment of the estate administration tax where the judge is satisfied that
the grant is urgently required, financial hardship would result without the grant, and sufficient security is given.
Such applications should be used as a last resort as they are not readily granted unless the circumstances are
severe.
CHAPTER 9 – PROBATE FEE PLANNING
What jurisdictions don’t really care about probate fee planning? 9.1.
Generally Alberta, Quebec, Yukon, Northwest Territories, and Nunuvut have nominal probate fees so there isn’t an
emphasis on probate fee planning.
What are the drawbacks of transferring property to joint tenancy to adult children? 9.1.2
- If nothing goes wrong, that is, no child dies before the parent, and the parent dies within the year rather
than living for a number of years, the planning may not have any harmful effects
- However it could to lead to more income tax payable than probate fees since there will be a deemed
disposition (and ultimately potentially more capital gains for adult children in the future)
o There may be a loss of the use of the principal residence exemption when there are multiple
owners
o Children may be in higher tax brackets which could lead to more taxes
o The property is subject to deemed disposition
- The distribution can be thwarted if certain future events intervene before he or she dies
- The property can be subject to third party claims
- There could be loss of control over the asset
How can jointly held property beneficiaries disrupt a distribution plan? 9.1.4
Inappropriate planning may result in the distribution of an estate be frustrated and disrupted from the original
testamentary intentions. With jointly held property it is not possible to provide for succession as it is in a Will. In a
will if an intended beneficiary dies before the testator a provision may be made for a gift over to other
beneficiaries. This may have unintended consequences if there is an “out of order” death. Beneficiary
designations can always be problematic. In most cases, unless contingent beneficiaries are designated, the
surviving beneficiaries in a designation will take the entire property. Even if contingent beneficiaries are
designated, it is possible to provide for the same complexity or number of alternate beneficiaries that may be
included in a will.
What are dangers of using and relying on beneficiary designations for insurance and registered plans, specifically
RRSPs and RRIFs to save probate fees? 9.1.4.3
Beneficiary designations can always be problematic. In most cases, unless contingent beneficiaries are designated,
the surviving beneficiaries in a designation will take the entire property. Even if contingent beneficiaries are
designated, it is possible to provide for the same complexity or number of alternate beneficiaries that may be
included in a will. There is generally less complex planning in using a beneficiary designation vs. using a will.
What are the considerations of using probate fee planning? 9.1.5

The larger the estate the more advantageous probate planning may be. The costs and benefits that have to be
weighed include:
• How much are the probate fees in the particular province?

• Are there other assets that could be transferred to the alter ego trust or other benefi ts that could be
obtained from the strategy suggested?
• Does the client have tolerance for complexity?
• Is the individual able to understand and make decisions about sophisticated planning strategies?
• Is the individual comfortable paying for professional advice to properly consider and implement the
planning strategies?
• Does the plan involve continuing costs and fi ling requirements?
• What is the total cost of implementing the plan?
• Are there other cost saving or tax saving strategies that are more appropriate or produce better savings?
• Will family members understand and appreciate the strategy and take the appropriate steps to follow the
plan after the death of the testator?
Besides probate fee savings, what other advantages are there for reducing value of estate? 9.2.
Reducing the value of the estate, or structuring one’s affairs to avoid probate altogether, has potential benefits
other than probate fee savings. These include the following:
• privacy,
• executor fees savings,
• savings on legal fees,
• protection from claims of spouses in respect of property and dependant relief, and
• protection from creditors.
What are the main probate fees saving strategies? 9.3.

Since probate fees are levied on the value of the estate, almost all probate fee planning strategies are designed to
accomplish either of the following objectives:
• reduce the value of assets in the estate subject to probate or
• have all assets that require probate pass outside the estate so that probate is not required at all on death.
How can a testator reduce the value of their estate? 9.3.2

The value of assets passing through the estate may be reduced by any number of Will substitutes, including:
• beneficiary designations for life insurance and registered retirement plans,
• joint property with a right of survivorship,
• use of a corporation to deduct the value of debt,
• inter vivos gifts, or
What protection does insurance proceeds have from creditors? 9.3.3.2

Provincial insurance legislation protects insurance proceeds from creditors of the insured. A beneficiary
designation in a Will for insurance may also exclude the claims of creditors. However, the designation contained in
the Will should state that it is made in accordance with the relevant insurance legislation. The designation should
also be located in the Will before the property of the deceased is conveyed to the executors in trust.
What tax consequences with RRSPS may occur to disrupt planning? 9.3.4.1
While there is no tax consequence for life insurance payout RRSPs and RRIFs are fully taxable on death unless a
rollover is available. The plan proceeds are reported on the terminal tax return. The estate (or the beneficiaries of
the estate) will ultimately be responsible for the tax liability while the beneficiaries of the RRSP/RRIFs receive the
full amount. This can lead to:
• an unintended windfall for the beneficiary who received the plan proceeds on a gross basis,
• depletion or elimination of the interest of a beneficiary under the Will due to the tax liability on the plan
payable by the estate,
• personal liability for the executor or administrator in respect of unpaid tax liability if he or she makes a
distribution without a clearance certificate, and
• surprise collection assessment on the beneficiary by the CRA if the estate does not pay the tax.
What protection from creditors does registered plans have? 9.3.4.3

Creditor protection for registered plans on death is limited. During a lifetime there is protection under federal
bankruptcy law effective July 7, 2008, for the assets of a bankrupt (except for any contributions made in the 12-
month period prior to bankruptcy). However, this protection is not available on death. In all jurisdictions, there is
protection on death to the extent the assets in the plan are life insurance products.3 This would include
segregated funds.
How can holding property with right of survivorship with adult children go wrong? What are alternatives?
There are general risks of adding someone jointly onto property to giving property early including:
- all owners have immediate and full access to the property
- if the property is held with adult children and there is an “out of order death” the certain family members
may find themselves disinherited.
- The property may be subject to claims of a spouse, creditors, or other third parties
- There is a deemed disposition for tax purposes
- There may be income tax complications from the new owners
- There may be a loss of the principle residence exemption
How can the presumptions of resulting trust or advancement be rebutted? 9.3.8.2

The presumption resulting trust or advancement can be rebutted by evidence of the transferor’s intention.
However, in the absence of evidence to the contrary, the presumptions apply.
If a client wishes to add a child as a true joint owner of an asset, it is recommended that they sign an agreement
indicating that is their intention. If, on the contrary, the intention is that the child will administer the assets under
the terms of the Will or convey them back to the executor to do so, this should also be documented.
What presumptions exists between husbands and wife vs. parents and children, vs. brothers and sisters
Spouses
In Ontario and also in Nova Scotia, the presumption of advancement between spouses has been abolished except
with respect to property held as joint tenants or monies held on deposit in both names.
Presumptions
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of
property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the
contrary, that the spouses are intended to own the property as joint tenants; and
(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint
tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14; 2005, c. 5, s. 27 (3). FLA
Where there is no presumption of advancement, there will be a presumption of resulting trust to which the
principles in Pecore and Madsen will apply.
What principles will court look to?
The court will examine the conduct of the parties, and any evidence regarding their intention to see if the
presumption is rebutted. This could include any written or stated evidence.
Children
The presumption of resulting trust or presumption of advancement can be rebutted by evidence of the transferor’s
intention
The case of Pecore and Madsen have abolished the presumption of advancement between a parent and adult child
but preserved the presumption for transfers by a parent to a minor child. Where jointly held property passes to
the child upon the death of the parent, the child will be holding that asset in trust for the estate of the parent, and
therefore the asset is to be distributed according to the parent’s Will.
What assets cannot go into alter ego trusts? 9.3.9

Not all property can or should be transferred to an alter ego trust:
• Registered Plans. These must remain in the name of the annuitant.
• Qualified Farm Property or Qualified Shares of a Small Business Corporation. An alter ego trust cannot
claim the capital gains exemption, nor can it allocate the capital gain to a beneficiary on the death of the
settlor.
• Other Rollovers: None of the rollovers otherwise available on death will be available for property in the
trust. This includes the spousal rollover and intergenerational rollover of farm property.
• U.S. Real Property. U.S. real property may be subject to gift tax.
• Property that May be Subject to U.S. Estate Tax. There may be a mismatch of U.S. tax and Canadian tax
credits in the alter ego trust.
What are the general tax consequences of an alter ego trust? 9.3.9
In general the income tax consequences of an alter ego trust are outlined below.
• There is a rollover on transfer of property to the trust on settlement of the trust as long as the settlor is 65
years of age or over.
• The 21-year deemed disposition rule does not commence until the death of the settlor, or the last death
of the settlor and his or her spouse in the case of a joint partner trust.
• There is a deemed disposition at fair market value of all property on the death of the settlor, or the last
death of the settlor and his or her spouse in the case of a joint partner trust.
• The trust will be subject to the top marginal tax rate on any income taxed in the trust. This will apply, for
example, on the deemed disposition occurring on the death of the settlor and/or his or her spouse
• The trust is a separate taxpayer, and this may result in a mismatch as between the trust and the settlor or
his or her spouse in relation to various credits and other tax attributes and accounts and may complicate
or compromise loss utilisation.
Risk of intervivos gifts 9.3.11.1

The potential donor must consider the following:
• loss of control over the property;
• the property is no longer available to the donor;
• will there be sufficient assets after the gift in the event of an emergency, change in financial position, or
change in health condition;
• the property will be exposed to the creditors of the recipient;
• the property may be subject to claims of a spouse under family law;
• if the recipient dies, the property will pass under his or her estate and be subject to the claims of the
recipient’s family members;
• the gift will be a disposition at fair market value for Canadian income tax purposes unless it is to a spouse
or common-law partner;
• there may be U.S. gift tax if the donor is a U.S. citizen (or if the property is U.S. real property, but this
would not be subject to probate fees or taxes in any event);
• there may be legal fees and other transfer costs;
• the effect of the gift on distribution of the estate both in the Will and outside the estate; and
• the effect of the gift on the recipient.
What is a hotchpot clause? 9.4

Hotchpot clauses are very effective in probate fee planning to ensure that the plan of distribution intended by the
state is effective whether property passes through the estate or outside the estate. A hotchpot clause can only
adjust the share of any beneficiary to the extent they are assets of the estate. Where the majority of the assets are
passing outside the estate, a hotchpot clause may not be able to fully remedy any disproportionate distribution.
Perhaps running through an example would be useful.
CHAPTER 10 – ADMINISTRATION OF TRUSTS AND ESTATES
What are the requirements of an executor to accept appointment? 10.2.1

- an executor who is appointed in a will has no obligation to accept the appointment
- an executor who is named in the will may renounce the appointment
- if none of the executors wish to act then another person will have to apply for the role
Why is it important to consider estate trustee’s ability to work with each other?
- It is important to consider the ability of executors to co-operate and work with each other because unless
the will states otherwise or there is a tie-breaker rule built in, executors must make decisions
unanimously
- If executors cannot agree there may be adverse results such as delays in administration, additional costs,
loss of planning opportunities, failure to protect assets or perform duties, and risk of litigation
What happens if an executor accepts appointment and wants to resign? 10.2.1

- once an executor has commenced to act, even before the grant is issued, renunciation can only be made
with the approval of the court.
How can an executor avoid taking on the role? 10.2.1

- the executor should be warned not to deal with the assets, represent themselves as executor, or ask
others to act on his or her authority as executor until the decision has been made to act
- otherwise the unconditional right to renounce is forfeited and personal liability may result from losses
resulting to the administration of the estate
What are some reasons an executor might want to avoid accepting the role? 10.2.1
- estate is insolvent,
- person intends to make a claim against the estate
- there is a conflict of interest
- does not want to the role or burden
- too much complexity
- ability to cooperate with others
What are the duties of the executor? 10.2.2

- the executor role is to administer the estate and distribute assets
- they may have to maintain ongoing trusts
- the executor has a fiduciary duty meaning the executor must always act in good faith and best interests of
the beneficiaries
What rights does an executor have to delegate their duties? 10.2.3

- the executor does not have to carry out each and every one of their duties personally
- the Will may also give the executor the authority to delegate some of their duties such as manage
investments
- some tasks that may be delegated include:
• a lawyer to obtain the grant of probate, advise the executor, handle the sale or transfer of certain assets,
maintain estate accounts, and assist with passing of accounts;
• a tax advisor (lawyer or accountant) to advise on the tax aspects of estate administration, do post-
mortem tax planning, and advise regarding the clearance certificate;
• an accountant to assist with financial statements and tax returns for any corporations held by the
deceased, prepare tax returns for the deceased and the estate, and any alter ego or joint partner trust;
• an appraiser to provide valuations for real estate and other assets; and
• an agent for executor (usually a trust company) to carry out some of the administrative duties.
What restraints are there with the executor’s authority to delegate 10.2.3
- the executor cannot delegate their decision-making obligations such as exercising discretion
- the executor cannot delegate his or her decision-making obligations. This would include the power to
exercise discretion to distribute income or encroach on capital, or whether to sell property or distribute in
specie, or to decide what price should be accepted on a sale.
- the executor must select and retain professionals or agents who have the appropriate expertise and must
supervise their work
Wagner v. Van Cleef: The administrator of an estate delegated all the responsibilities of estate administration to
a solicitor who misappropriated a substantial sum. The court found the administrator was personally liable for the
lost funds.
What happens to executor compensation when there’s delegation? 10.2.3

- to the extent the executor delegates their duties, there may be a reduction in their compensation
- the executor should have good record keeping of all accounts, expenses, costs, and payments made from
or on behalf of the estate
What costs will not reduce executor compensation? 10.2.3

• real estate commission on sale of real estate,
• broker’s commission on investment sales and purchases, and
• lawyer’s and accountant’s fees to the extent the advice is beyond the requirements of the executor’s role,
such as specialised advice, resolving beneficiary disputes, or added costs of formal passing of accounts.
What may an executor be personally liable? 10.2.3
- Executors may wish to save the cost of professional advisors, but they run a very high risk that costly
mistakes may be made. In addition to personal liability, the executor may be risking his or her own
inheritance if he or she is a beneficiary.
- The executor will be personally liable for the value of any distribution made to a beneficiary without
having first obtained a tax clearance certificate under the Income Tax Act.
- An executor may also be personally responsible for any loss or failure to minimise liability if tax advice is
not obtained
How does the even hand rule apply to executors? 10.2.5

- The executor may have the duty of impartiality or the even handed rule when it comes to considering the
rights of beneficiaries
- the rule most often arises with respect to the exercise of any discretion during the administration of a
trust that may favour one class of beneficiary over another, such as a life tenant versus a remainderman,
or other successive interest or residual beneficiary. The executor must not favour one over the other.
What is the executor’s standard of care? 10.2.6
- the executor is held to a high standard of care but will not be liable to honest mistakes
- a non professional will be held to ordinary standard of care
- a lawyer, accountant or other professional will be held to a higher standard
- one who takes compensation will also be held to a higher standard of care
What are the executor’s responsibilities with investments? 10.2.7

- Ontario’s Trustee Act has a prudent investor rule that requires the trustee to act as a prudent investors
and provides other requirements
- One common principle is the requirement to be diversified
- The Will could allow for delegation of investment-making powers
- The executor, however, should oversee the professional and pick one appropriately
What are the executor’s responsibilities when the deceased owned a business? 10.2.8
- If the testator was carrying a business, the executor must act to preserve the interest of the estate in the
business
- If it was a sole proprietorship, the executor may have to wind up the business if it cannot be sold or a
family member does not want to continue the business
- If immediate sale of the interest in the business is not possible or practical, it may be appropriate to
arrange for continuation of the business until a sale can be made.
- The executor would not be expected to carry on the business personally
- The executor may act as a shareholder of the corporation but this may not give them authority to act for
the corporation
- The executor may act if they are elected director/officer of the corporation
- This may put the executor in a conflict of interest since they have to act in the best interest of the
beneficiaries of the estate but as a director/officer, they have to act in best interest of the corporation
What questions will the court help the executors with? 10.2.10
- An executor may apply to the court for advice and direction with the administration of the estate
Trustee, etc., may apply for advice in management of trust property
60 (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the
Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the
management or administration of the trust property or the assets of a ward or a testator or intestate. R.S.O. 1990,
c. T.23, s. 60 (1); 2000, c. 26, Sched. A, s. 15 (2).
- The court will not allow application if it is used to help delegate the decision making of the trustee
- The court may advise on:
o when a class of beneficiaries closes,
o whether a particular person is a member of a class of beneficiaries, or
o whether the executors have the authority under the terms of the Will to carry out a specific act.
• The executor should be neutral and seeking instructions and not favour a specific outcome
What is an agent for executor? 10.2.11

- An executor may seek the help from an agent for executor to relieve some of the work and anxiety
associated with the estate administration
- While there is often a clause that allows for this, an executor generally may hire an agent for executor
without specific authority
- Advantages include:
o The agent can carry out only those administrative duties assigned by the executor, whether
limited or comprehensive.
o The fee arrangement is flexible so that only those services provided are included in the fee.
o The executor is relieved of much of the “legwork” involved but still must make all decisions.
o the executor and beneficiaries can be confident (assuming a trust company or other professional
such as an estate solicitor is hired) that the administration is being carried out by professionals
who have expertise in estate administration.
What happens to executor fees if there is an AFE? 10.2.11

- the fees for agent for executor are generally deducted from any compensation that the executor may
claim
- if the cost of hiring the agent for executor is seen as an unjustified expense or drain of assets, the
compensation may be claimed by an executor if it’s less than what they would have charged
What role can a solicitor play in the administration of estate? 10.3
- the executor should seek the help of a solicitor who can carry out the following:
o prepares the application for the grant of probate,
o prepares notarial copies of documents, such as Letters Probate, as required,
o advertises for creditors, and
o performs any legal work required to transfer the real estate of the deceased.
If the executor wishes to delegate, other tasks may include:
• preparing the inventory of assets

• securing the property and arranging for insurance as required,
• realisation of assets,
• preparation of income tax returns,
• application for the tax clearance certificate,
• distribution of property to beneficiaries and obtaining releases,
• preparation of accounts, or
• any other administrative duty.
- Executor has to oversee the work of the lawyer and make all decisions
What is the executors years and what is the basis for establishing this period? 10.4
- Generally the executor cannot be forced to make any distribution or payment of income during the first
year of administration of the estate
- The basis of the rule is that until the assets and liabilities are determined, the executor will not be in a
position to determine what funds, if any, are available
- The CRA recognizes the executor’s year and in most circumstances will permit any income earned by the
estate in the year to be taxed in the estate return even if income is payable to the beneficiary under the
terms of the will
How are the estate trustee’s role similar to the role of a trustee of a trust? 10.6
• the fiduciary duties and obligations of trustees,
• the standard of care,
• the requirement to account to and communicate with beneficiaries,
• the requirement to maintain an even hand,
• any requirements regarding investment and management of trust property,
• the requirement to prepare and fi le tax returns,
• the exercise of discretion as permitted under the trust document,
• the distribution of income and/or capital in accordance with the terms of the trust,
• the final distribution of trust property,
• preparing and presenting accounts and passing them before the court if required, and
• the risk of personal liability where distributions are made without a tax clearance certificate.
When does the role of executor end and trustee begin? 10.7
The period of administration of a testamentary trust begins only after the estate has been administered and the
assets or fund that is directed in the Will to be paid to the trust has been distributed to the trust by the executor or
administrator. This may be confusing where the testamentary trust comprises the residue of the estate because
there may appear to be a seamless transition from the administration, gathering assets and paying liabilities, and
the commencement of the residual trust.
Why is the timing of commencement of administration of testamentary trust important? 10.7

The timing of the commencement of the administration of testamentary trusts is important for several reasons.
• Accounts may be passed before transfer to the testamentary trust. This protects the executor and
trustees of the trust.
• A clearance certificate should be obtained since the funding of the testamentary trust is a distribution by
the estate.
• The rights of beneficiaries to distribution under the trusts may not commence until the trusts are funded
by the estate.
• The trust may have trustees who are not the same persons as the executors.
What does the estate trustee have to do with T3 trust returns? 10.8
- The T3 trust income tax and information return is filed by trustees for inter vivos and testamentary trusts
- The T3 return is also used to report income earned by an estate after the date of death
- It is filed by the executor annually until the administration and distribution of the estate assets has been
completed
CHAPTER 11 – STEPS IN ESTATE ADMINISTRATION
What’s a list of steps of things estate trustee has to do?
- Located the will, determine executor, review instructions

- Review funeral instructions (if any)
- Review any wishes re: organ donation
What is the rule relating to organ donations? 11.2.2.1

- Deceased may have left instructions in their wills or on their driver’s license or provincial health insurance
provider
- Testator may have left intent of wishes but it’s possible family members can override that
- Legislation may provide list of people who can make decisions starting with next of kin
- Family members, however, can’t donate organs if testator left wishes not to donate
Who hast last say with funeral arrangements? 11.2.2.2

- The executor has the authority to make the funeral arrangements and decide how to dispose of the
remains. This authority supersedes the wishes of any beneficiary, but generally should not be contrary to
the wishes
- The executor may, but is not obligated to, request family members’ input on decisions about the funeral
arrangements.
- Funeral costs are a proper expense to the estate but should be reasonable, modest arrangement may
need to be made and executor doesn’t have to listen to family or be extravagant
What are various documents that an executor needs and proof of death? 11.2.3
The executor may need various notarized copies of proof of death which may include
- death certificate issued by the province or funeral director,

- burial certificate,
- copy of coroner’s report, or
- Act of Death or Certificate of Death (Quebec).
The death certificate issued by the funeral director is sufficient for most purposes and is available immediately.
What is the executor’s responsibilities with immediate family needs? 11.2.6
- The executor should be aware if there are any immediate financial needs and may need to look to other
sources funds
- This may include insurance policies, employee pension plans, registered plans, or joint accounts
What other agreements or issues should the executor be aware of? 11.2.7
- The executor should be aware and review and marriage agreements and understand any obligations the
estate may have to spouses or dependants
What other documents will the executor need to probate? 11.2.8.1

- Original will
- Affidavit of execution to the will
- List of assets of the estate
What are some interactions and responsibilities between the executor and beneficiaries? 11.3.1
It is important that an executor communicate with the beneficiaries.
The beneficiaries should understand the executor’s duties include:
- obtaining the Grant of Probate (or provincial equivalent), if necessary, in order to deal with the
deceased’s assets,
- paying the estate’s debts and taxes,
- producing full accounts to the beneficiaries showing how the estate assets have been handled and
obtaining the beneficiaries’ written approval of the accounts,
- distributing the personal property and the remainder of the estate to the beneficiaries according to the
Will,
- filing the estate’s final income tax return (the “terminal” return), and
- always being ready to account to the beneficiaries for the handling of the estate’s assets.
What do beneficiaries generally want to know from the estate trustee? 11.3.1
Beneficiaries typically want to know:
- when they will receive their inheritance,

- that the executor has done his or her job properly — if the executor misses something, it could have an
impact on the beneficiaries,
- that the debts and taxes of the estate have been paid,
- that reasonable funeral expenses have been paid,
- that the estate accounts and investments are earning reasonable interest,
- that the executor has distributed the personal property to the designated people,
- that the remainder of the estate is being distributed according to the terms of the Will, and
- what fees the executor will receive for his or her work in administering the estate.
How can the executor avoid conflict over fees? 11.3.1
To avoid conflict the executor should:
- keep detailed accounts,

- keep a detailed log of the time spent on each aspect of estate administration to illustrate the number of
hours involved, and
- explain how the fee is calculated. Often, the fee is 3% to 5% of the value of the estate, depending on the
province. Provincial laws provide that the executor’s fee must be fair and reasonable in proportion to the
size of the estate and the work done by the executor.
- Beneficiaries dislike long periods of silence while executors are administering the estate, and may
interpret lack of communication with lack of progress
o To maintain the best possible relationship with the beneficiaries, the wise executor will be
proactive and keep beneficiaries informed as the administration progresses.
How should there be communication between executor and beneficiaries? 11.3.4
- Ongoing updates to the beneficiaries about the estate settlement are key as the executor will need the
residual beneficiaries to provide written approval of the estate’s accounts confirming that they are
satisfied with how the estate has been administered.
- It is recommended that signed releases be obtained to confirm that the beneficiaries accept the amounts
shown in the accounts in full satisfaction of their entitlement under the Will and waive their right to sue
the executor in the future.
- if a beneficiary refuses to approve the estate accounts, the executor can apply to the court to have the
accounts reviewed/approve
What are some of the immediate first steps in dealing with assets the trustee should do? 11.4
Executor should identify matters that require immediate attention and protect it from theft and loss including:
- Changing locks to the apartment or home if there is any question as to who may have access to the
premises;
- Disposing of or selling perishable goods;
- Arranging to continue or terminate regular services;
- Advising management companies and landlords of any expected delays in the estate’s ability to make
monthly payments; and
- Taking steps to protect the deceased’s business interests
What are some reasons to get assets valued? 11.5.1
An asset inventory is usually required in estate administration. Valuations serve many purposes including and are
required to:
- calculate probate fees/taxes where applicable,

- determine the amount of insurance that may be required (subject to the caution below),
- establish a deemed disposition value for the deceased’s final tax return (the asset values also become the
new cost base for the estate),
- assist with the calculation required if there is a division of family assets,
- establish or inform the list price for assets that must be sold (see 11.9, Disposing of Assets), and calculate
executor fees (see Chapter 13, Estate and Trust Accounts).
How does executor deal with accrued income 11.5.4
- If an asset produces income such as interest, rents, or dividends, it will be necessary to calculate any
accrued income also due to the deceased. If the income is interest or rental income, the accrued income
is calculated on a pro rata basis from the date of the last interest or rent payment.
- The amount of accrued income is an asset of the estate reported on the inventory. It will be reported as
income on the deceased’s final tax return. Accrued income is not included in the asset’s new ACB value
How can information be collected by the estate trustee? 11.5.7
Executors will need to collect information from third parties which may involve sending letters to:
- Third Parties Holding Assets: These include banks and investment firms holding cash, mutual funds,
investments, registered plans, and life insurance. Account statements also provide information and
should be reviewed.
- Government Agencies: These include Canada Pension Plan, Old Age Security, Veterans Affairs Canada, and
Quebec Pension Plan.
- Canada Revenue Agency (CRA): The CRA can provide past returns and assessment details.
- Sources of Periodic Payments: These include employers for outstanding wages and benefits, pensions,
and annuities.
What type of information should be requested from third parties? 11.5.7.2
- The Registered Name on the Account. All names that have been used by the deceased should be
captured. This includes the deceased’s full legal name, a shortened version, and all nicknames.
- Balances: All balances, including accrued income and other amounts due to the deceased, are required.
Past statements should be requested if not already available.
- Transmission/Transfer Requirements: The holder of the asset may require his or her own documents or
supplemental information, in addition to the grant, before the asset(s) or account balances will be
transferred to the executor.
- Acquisition Costs and/or ACB: Purchase costs and/or the current ACB is required to prepare the tax
return.
- Interim Instructions: Interim instructions pending receipt of the grant should be provided as appropriate,
including whether or not to accept future deposits, permit automatic withdrawals, and sale of
investments if an account was managed by a discretionary investment manager. Dividend reinvestment
plans should also be stopped.
- Statements and Tax Slips: A request should be made that all future statements and tax slips be redirected
to the executor. If this cannot be done immediately, the executor will need to collect statements and slips
that were issued prior to the grant being issued. If mail is redirected, this may not be an issue
What documents should be reviewed for information? 11.5.7
• Personal Papers of the Deceased: Papers may be found in the home and/or a safety deposit box. These
papers may reveal assets, liabilities, beneficiary information, and a number of other relevant pieces of
information, including loans to family, friends, or business associates. The documentation and records
available for these arrangements will depend on the relationships and amounts involved.
• Contracts and Agreements for Services: These documents may establish legal obligations, including
separation or divorce agreements or court orders.
• Tax Returns: Past tax returns provide clues to assets that paid employment or investment income.
Inquiries may be required to determine why income sources have stopped and/or to locate them.
It may be necessary to redirect the deceased’s mail to ensure nothing is overlooked.
What are the executor’s responsibility with safeguarding assets? 11.5.9
The executor is responsible for safeguarding assets which may include decision about story or security and may
include:
• moving valuables to a vault with double custody or another secure place, arranging storage for art
collections or other valuables that require special facilities and/or climate control,
• arranging for storage of household goods pending probate and sale or distribution if the premises are not
secure or must be vacated,
• arranging for insurance on valuables, collections, and jewellery,
• arranging for insurance on homes, including vacancy permits if the home is not occupied,
• ensuring that homes and other properties are appropriately prepared for the different seasons and satisfy
insurance requirements, including periodic inspections,
• changing locks where others may have keys, and
• arranging for security services for homes or other premises.
How does the executor prevent unauthorised access to accounts collecting income? 11.5.9.2
Third parties may not want to deal with assets or reluctant to deal with them. Each FI may have different
instructions relating to giving and receiving instructions. Executors should:
• give specific instructions regarding future deposits and withdrawals, including whether or not transactions
are to be permitted,
• give instructions that no further trades should occur on an investment account, and that any dividend
reinvestment plans should be terminated so that dividends are received as cash and no further share
purchases occur,
• give instructions redirecting investment income to the deceased if delivered by mail so that cheques do
not get lost, and
• collect bank balances and transfer investments to an estate account as soon as possible (usually upon
receipt of the grant). This may involve a physical transfer or re-registration of accounts or certificates into
the executor’s name.
Types of investments and how to deal with them
Wages, Pensions, Death Benefits, and Annuities It is important to notify the payer of the pension or
(11.6.1) annuity of the death as soon as possible so that
CPP, OAS, pensions, payments are terminated. Payments received into an
account after the date of death must be returned as
soon as the executor has legal authority over the
account.
Annuities 11.6.1.8 Annuity payments end upon the death of the annuitant
Annuities are periodic payments that continue for the unless there is a guarantee period or it continues for
annuitant’s life and are issued by life insurance the benefit of a surviving spouse. Payments received
companies. after the date of death must be returned unless there
was time remaining in the guarantee period. When a
guarantee period has not expired, the payments
continue until the end of the period. The executor may
be able to elect to take a commuted lump sum amount
in order to proceed with distribution of the estate
Cash on Hand on Deposit (11.6.3) The balance of a chequing account will be the balance
For purposes of the inventory, “cash on hand and on at date of death. If the account is a savings account, the
deposit” includes: amount due to the estate will be the balance at date of
• physical money found on the deceased and/or in the death plus accrued interest earned between the last
home and payment and the date of death
• cash balances on deposit at a financial institution.
Guaranteed Investment Certificates GIC (11.6.4.1) The description of a GIC on the inventory should
GICs are issued by financial institutions for fixed terms include:
from 30 days to five or more years. The interest rate is • the issuer name,
an annual rate and may be paid annually or more • the principal,
frequently compound-interest GIC, the interest is added • the maturity date,
to the principal. The principal amount invested in a GIC • the interest rate, and
is returned to the investor on maturity. • the frequency of payment.
Government Savings Bonds (11.6.4.2)
Similar to a GIC, a principal amount is invested. The
interest can be paid each year (Regular bonds) or
compounded (Compound bonds). Unlike GICs, the
interest on savings bonds is only paid annually unless it
is compounded, in which case it is earned but not
received until the bond matures.
Treasury Bills 11.6.4.3
Treasury Bills (or T-Bills) are short-term money market
instruments issued by the Government of Canada for up
to 365 days
Bonds 11.6.4.4 The information required on the inventory includes:
Bonds are issued by all levels of governments and • name of issuer;
corporations. In effect the bond issuer borrows from • description of bond, including the face value, series
the investor. Bonds can be purchased on the open information,
market through a broker and/or other descriptors or features;
• interest rate as stated in the bond description;
• payment frequency (usually semi-annual);
• maturity or due date;
• price of the bond on the date of death;
• accrued income details:
◦ number of days since last payment beginning with the
first day after the payment and including the date of
death,
and
◦ accrued interest amount.
Shares in Public Companies 11.6.5 For the purpose of the estate inventory, the description
Shares or stocks represent an investment in the of a stock holding should include:
ownership of a company itself, that is, shareholders • the name of the company,
own an interest in the company. Shareholders earn • the type of share and any description attached to it
income from the investment in the company when the (e.g., features such as being redeemable or
company pays dividends convertible), including the stated dividend rate for
preferred shares,
• the market price at the close of business on the date
of death or the last business day before the date of
death,
• the number of shares, and
• the value of any ex-dividends.
Ex-Dividends (11.6.5.1) There are four important dates after a dividend is
In addition to determining the market value of the declared
shares, it is important to determine whether or not 1. Declaration Date: the date the dividend is
there are any ex-dividends due to the deceased. Ex- announced.
dividends are another type of accrued income that 2. Ex-Dividend Date: (see below).
must be included on the inventory. 3. Record Date: the date the shareholders of record
entitled to
the dividend are determined.
4. Pay Date: the date the dividend is paid.
Mutual Funds 11.6.6 For purposes of the inventory, the executor will record:
Essentially, a mutual fund is made up of a pool of funds • the name of the mutual fund,
contributed by a number of investors. The money • the number of units or shares held,
invested is used to purchase a portfolio of investments • the price at the end of the day on the date of death,
in accordance with the investment policy for the fund. which is often
Each investor is allocated his or her pro rata share available on public listings or can be obtained from the
according to his or her contribution. The investor’s dealer,
interest is said to be unitised and each investor holds a • the market value
number of units. • any accrued income based on a prorated allocation of
the first income distribution payment received after the
date of death, and
• distributions of net capital gains are not included in
accrued income. They should be reported by the
taxpayer who owns the units on the date the payment
is received.
Recording Loans Due to the Deceased on the Inventory When listing the loan, the details to be included are:
11.6.7.3 • the name of the borrower,
The executor will need to review all documentation to • the amount due, including both principal and any
determine the terms of any loan arrangements unpaid interest,
between the deceased and a borrower or purchase • the interest rate,
under an agreement for sale. If the security involves a • the accrued interest, and
mortgage or other charge on land, then it should be • the nature and details of any security put in place.
recorded on the inventory as an interest in real
property.
Income from a Trust 11.6.8
If the deceased was a life tenant or revenue beneficiary
of a trust entitled to the trust’s net income each year,
there may be an amount due to the estate
Registered Plans 11.6.9 • The Value of the Plan at the Date of Death. This is
Registered plans are established under the Canadian calculated by the trustee of the plan and follows similar
Income Ta x Act. They are vehicles to allow Canadians rules for determining market values and accrued
to save money for different purposes and to defer income.
income tax on income and gains earned. • Designated Beneficiary(ies): Plan beneficiaries may be
identified in the plan application form or in a Will.
There are five types of registered plans, each with Where the designation is in the Will, the plan should
different rules: already be in existence, that is, it cannot refer to future
1. Registered Retirement Savings Plans (RRSPs) plans. If there are designations in the plan
2. Registered Retirement Income Funds (RRIFs) documentation and in a Will, and the names are not the
3. Registered Education Savings Plans (RESPs) same, guidance will be required to determine which
4. Registered Disability Savings Plans (RDSPs) one prevails. The dates of the documents, and details of
5. Tax-Free Savings Accounts (TFSAs) any revocations, will be required. Note that if a Will has
been revoked, and later revived, it is unlikely that any
beneficiary designations will be revived.
• Trustee to Receive the Funds: The deceased may have
arranged for the beneficiary to be a person who will
hold the plan proceeds on trust. The terms of the trust
may be in the Will or a separate trust document.
RRSP 11.6.9.1 • name of the institution where the plan is held,
Unless there is a designated beneficiary, the FMV of the • type of registered plan (e.g., RRSP, RRIF, TFSA, RDSP,
plan on the date of death must be reported on the RESP),
inventory. Details to be included on the summary • plan number, and
include the: • valuation.
If there is a designated beneficiary, the information
about the plan is
included on the page listing assets passing outside of
the estate.
NOTE: Whether or not there is a designated beneficiary,
the full amount
of an RRSP is also included on the deceased’s final tax
return. Elections to defer the tax may be possible in
certain situations where the proceeds of the plan are
transferred to:
• the deceased’s spouse or common-law partner,
• a child or grandchild who is financially dependent on
the annuitant, or
• an RDSP.
Registered Retirement Income Funds (RRIFs) 11.6.9.2 If there is no successor annuitant, the fund is dealt with
A RRIF can be opened any time up until the end of the in the same way as an RRSP and the entire amount is
year when the taxpayer turns 71. RRIFs are funded from included on the inventory if there is no other
RRSPs and other registered pension plans. designated beneficiary. If there is a designated
beneficiary, the plan proceeds pass outside of the
Each year the annuitant must withdraw a minimum estate and the plan is reported on the inventory page
amount from the RRIF. The amount received is reported for assets passing outside of the estate. In either
as taxable income. The amounts paid out increase each situation, the full value of the RRIF is reported as
year. income on the final tax return.
NOTE: As with an RRSP, options for tax-free transfers of

RRIF proceeds to beneficiaries who are financially
dependent children or grandchildren may be available
Tax-Free Savings Accounts (TFSAs) 11.6.9.3 A TFSA holder can also designate a spouse or common-
Canadians may transfer specified amounts of cash each law partner (a “survivor”) to be a successor holder. In
year to a TFSA. The amount is set by the federal this situation, the TFSA can continue and the survivor’s
government. It is not tied to income and there is no contribution room for his or her own TFSA is not
deduction from income in the year of the contribution. affected.
If a contribution is not made in a given year, the
taxpayer will have “contribution room” in future years. Although a TFSA plan ceases to exist unless a spouse or
A taxpayer who opens the TFSA is called a “holder.” common-law partner is a successor holder, the
proceeds will pass outside of the estate when a
beneficiary designation is made in the plan
documentation or a Will.
Registered Education Savings Plans (RESPs) 11.6.9.4 From an estate perspective, the important point to note
RESPs offer a way for parents, grandparents, or other is that RESPs do not provide for designating a
relatives to save for the future education of children beneficiary on the death of the subscriber or the
and grandchildren. The person who establishes the plan beneficiary. And the beneficiary for purposes of
is called a subscriber. The person(s) who will benefit definitions relating to
from the plan is referred to as the beneficiary(ies).
RESPs is not entitled to the RESP proceeds if the
subscriber dies. Most plans provide for the
appointment of a successor subscriber in the event that
the RESP is still in place when the subscriber dies. If
there is no successor, or the RESP is not otherwise dealt
with in the Will, the RESP will be treated as if the assets
belong to the estate.
Registered Disability Savings Plans (RDSPs) 11.6.9.5 The person with the disability is the beneficiary of the
RDSPs are long-term savings plans for Canadians with a plan. Contributions may be made by the beneficiary or
disability. Eligibility is determined based on eligibility for by others. The contributor is referred to as the “plan
the Disability Tax Credit under the Income Tax Act. holder” and is the one responsible for managing the
investments in the fund. The investments in the RDSP
grow tax-free.
Life Insurance Proceeds 11.6.10 If the policy proceeds are payable to one or more
If the deceased named the estate as the beneficiary of a named beneficiaries, or are payable to a trustee and
life insurance policy, there will be an amount due to the will pass outside of the estate, the policy should be
estate that will be paid when the executor provides a listed on the estate summary page for assets passing
copy of the grant and any other required information. outside of the estate.
The inventory should indicate the name of the insurer,
the policy number, and the proceeds due to the estate. Generally, life insurance proceeds that pass outside of
the estate are exempt from
claims by creditors.
Collections and Other Valuables 11.6.11
Collections and other valuable items such as artwork
will require an appraisal by a qualified appraiser for the
assets being valued. The cost of the appraisal will be an
expense of the estate. The inventory listing will note the
description provided by the appraiser, the value, and
the appraiser’s name and contact information.
Real Estate 11.6.12 In certain circumstances an alternative approach to
Real estate should be valued by a qualified appraiser for obtaining a valuation of a residential property may be
the type of property. The Appraisal Institute of Canada appropriate. For example, in some jurisdictions a recent
has two designations:22 municipal assessment is considered representative of
the FMV.
Canadian Residential Appraiser CRA and Accredited
Appraiser Canadian Institute (AACI)
Deducting Liabilities for Purposes of Probate Fees and
Taxes 11.6.13
If the deceased has an outstanding loan that has been
secured by a mortgage against property owned by the
deceased, it is the practice in all jurisdictions to deduct
the outstanding mortgage value from the value of the
property for purposes of calculating probate fees or
taxes. However, the debt does not reduce the value of
the estate for purposes of executor compensation.
Vehicles, Boats, and Other Vehicles for Transportation One source for valuing a car is the Canadian Black Book.
11.6.14 The information is now online and can be searched by
Cars, motorcycles, motorboats, bicycles, and watercraft province and postal code.
can have a range of values depending on the age,
model, and condition. A variety of sources may need to Other vehicles and modes of transportation may
be considered to determine the fair market value. require inquiries of retailers of the particular asset to
determine the FMV. The inventory should identify the
vehicle make and model, year, serial identification
number, the date-of-death value, and the source of the
valuation.
11.6.15 Personal Effects and Household Furnishings
Personal effects and household furnishing are a broad
category. Household furnishings generally include
anything associated with the enjoyment of the home.
Personal effects are items that are personal to the
deceased, including clothing and jewellery. The
distinction will only be relevant if the Will deals with
each category differently. If the value of these items is
nominal, a valuation will not be required and the
inventory will note “of nominal value.”
Other Assets 11.6.16 Generally, the guidelines discussed above can be used.
There are numerous other assets and unique The key elements are:
investment vehicles that may need to be identified and • What is the value at the date of death and how is a
listed. Points on loyalty programs should also be valuation obtained for the specific asset?
investigated. While they may not have a FMV to be • What type of income does the asset pay and is there
reported, it may be possible to transfer the points to any accrued income?
certain family members. • What unique features of the asset may require special
attention?
• What is required to transfer ownership to the estate
or others?
What are some reasons why there could be missing assets? 11.6.7
An executor may have reason to believe that assets are missing. This could arise if:
• A Will leaves a specific gift to someone. It will be necessary to attempt to determine what happened to
the gift (see Chapter 3, The Law of Wills).
• A tax return reveals that in the past year income was earned from an investment or asset and there is no
information to suggest that the asset was sold or transferred as a gift. Tax slips will provide information
on where more information might be found.
• Jointly held accounts, revealed in personal papers or a tax return, no longer exist at the date of death. It
will be prudent to determine why the account no longer exists, particularly if the deceased was incapable
in the year prior to death.
• A family member or beneficiary tells the executor about an asset or personal item that they believed
existed.
What is an executor’s role with locating heirs and unclaimed property? 11.6.17.2
- Executors should be alert to heir locators who may have matched unclaimed property to a deceased
person. The contracts that an executor will be asked to sign include significant fees. Executors should
therefore conduct their own thorough searches.
What is the executor’s requirement for disposing assets? 11.9
- The general rule is that an executor must call in (collect) all assets, convert them to cash, pay expenses
and debts, and distribute. However, Wills often provide exceptions to this rule and/or give the executor
discretion as to timing.
- In addition to liabilities and estate expenses, specific cash legacies must also be paid. Therefore, the first
priority is to ensure that, if necessary, liquid assets (those that are easily sold) are sold or collected in
order to fund these payments.
- A second consideration is the need to sell any assets that are “wasting” or at risk to avoid any further loss
to the estate
- Prior to selling investments that are not needed for expenses or that are not at risk, the executor should
consider whether or not to offer the investments to the residuary beneficiaries in kind.
How should the executor determine sale price? 11.9.2
• Determine Sale Price: Is an updated appraisal required to determine the current market value and to help
inform the decision on the list price?
• Ensure Proposed Sales Commissions Are Appropriate: Are the sale commissions fair and consistent with
industry practice?
• Identify the Best Market for Offering the Asset for Sale: The executor must seek to ensure an open market
is used in order to obtain the best price. For example, best practice when selling real estate is to use
Multiple Listing Service (MLS). Other assets may need to be taken to a special collector’s auction or
marketed through a specialist who has access to the potential buyers. Household goods and other items
from the home might be sold through an auction house.
A specialist in selling the particular asset should be retained to provide advice.
What are three main categories of liabilities, expense or claims against the estate? 11.10.1
• debts or liabilities due at the date of death, including claims by others in respect of contracts or other
liability to third parties,
• legitimate expenses incurred in the administration of the estate, and
• claims that may be made against the deceased’s estate by a spouse or dependant.
What is the executor’s duty to pay debts? 11.10.1.1
The executor must pay all just debts and settle any legitimate claims prior to the final distribution of the estate
assets. “Just debts” are also referred to as “valid” or “proper” debts
Therefore, the executor must be satisfied that:
• when a debt or specific amount is claimed, all relevant details have been reviewed and considered, and
that the calculation of the amount due is correct,
• there are no reasons to dispute the claim, and
• when the claim is more general, that the amount settled upon, if not taken to trial, is fair and reasonable.
What is the difference between estate liability versus testamentary expenses? 11.10.1.2
Estate liabilities such as outstanding debts and liabilities are a charge against the assets owned at the date of death
Testamentary expenses are the costs of administration incurred and are recorded in the accounts provided to the
beneficiaries and expenses must be reasonable.
- If an estate expense is successfully challenged, the executor can be held personally responsible for part or
all of the expense if it was not necessary or is determined to be excessive in the circumstances.
- Estate expenses include a wide range of expenditures. Some of the more common expenses are funeral
expenses, appraisal fees, professional service fees, property insurance premiums, security or inspection
services to protect assets, probate fees/taxes, property taxes, utility bills, and condominium fees
What claims may exist against the estate? 11.10.1.3
- Other claims that might be made against the deceased include amounts due on a contract, a legal claim
for a tort (wrongdoing or negligence), or a claim for services provided.
- The deceased may also have a legal obligation to a former spouse to make monthly support payments.
Where the deceased has any ongoing or regular financial obligations, it will be important to read the
terms of the order or agreement.
Types of Liabilities and Establishing Amount Due 11.10.2
At the time of death the deceased may have a number of different liabilities that need to be addressed. Each one
requires its own inquiries, and different approaches may be required to establish the amount due
Source of Information 11.10.2.2 Bank records and credit card statements – these will
In addition to letters to third parties executors should show any potential liabilities or regular payments made
review documents to ascertain what liabilities may exist Mail – indicates existence of contracts, regular service,
or outstanding bills or expenses that require attention,
subscriptions, memberships, and other financial
relationship
Income tax assessments and notices – may reveal
outstanding tax liabilities
Family, business associates, managers, lawyers and
accountant – may have information about liabilities
Online accounts and services – executors need ot be
informed on how to identify online agreements and
accounts
Household Bills and Other Regular Payments 11.10.2.3 Once these bills and payments are identified, the
Household bills need to be identified. Typical bills and executor should:
regular payments include phone, television, Internet, • Consider immediate cancellation and/or diarise for
security systems, utilities, condominium future cancellation. For example, if a home is vacant,
telephone and television is no longer required, but
condominium fees or monthly rental payments must
continue and it will likely be prudent to maintain
security system arrangements. Magazine and other
subscriptions can be terminated immediately to avoid
new charges and/or collect refunds if the subscription
was paid in advance.
• Confirm the amount due and determine if interest is
accruing on unpaid balances.
• Ensure that the outstanding balance is a proper estate
liability. For example, if the deceased’s adult child lived
with the deceased and the bill relates to a phone or
Internet service used exclusively by the adult child, the
expense is not a proper estate expense. Similarly, if the
deceased shared a credit card with another family
member, expenditures by the other person will not be a
proper estate expense.
Medical, Pharmacy, Nursing, or Home Care Bills
11.10.2.4
If the deceased was suffering from an illness or had
medical needs prior to death, there may be outstanding
bills with a local pharmacy, ambulance services, or
health-care related services
Credit: Loans, Mortgages, Lines of Credit, and Margin Each of these credit or loan arrangements is subject to
Accounts 11.10.2.5 the terms and conditions of an agreement between the
There are many ways to obtain credit today. For borrower and the lender. The
purposes of this course, agreement will document the:
the most common are: • amount of the loan (principal) and schedule of
• credit cards issued by financial institutions and repayment if applicable,
retailers • interest rate, including method of calculation and
• lines of credit with a financial institution, payment frequency,
• unsecured loans from financial institutions, retailers, • due date for the balance owing or principal,
and individuals for specific purposes, • renewal options if any, and
• “margin” accounts, where an investor borrows against • security for the loan if any (e.g., a mortgage or other
investments in an account to make additional lien or charge against personal property).
investments, and
• conventional mortgages to secure loans to purchase
property, obtain lines of credit, or fund borrowing for
special purposes.
Guarantees11.10.2.6 It may be necessary to explore options for the executor
A deceased may have also guaranteed a loan. Often this to ensure the debt is paid by the primary debtor or is
will involve a loan to a child or family member, or a loan secured through other means. Negotiations with the
to a business. The executor will need to obtain a copy of lender and/or the primary borrower may be required.
the loan and guarantee documentation. Once the terms
are known, including whether there was any security
provided, a decision will be required as to whether or
not full payment in satisfaction of the
balance due should or can be made.
11.10.2.7 Business Debts
If the deceased operated an unincorporated business,
there may be additional business-related debts to be
settled.
11.10.2.8 Contracts for Services and Other Claims Individuals may also advance claims against the
Against the Deceased deceased’s estate for goods or services provided to the
Contracts for personal services cannot be enforced deceased. Any claim that is not based on a formal
against an estate. Personal services include anything agreement in writing that can be verified must be
that the deceased might be contracted to do personally, scrutinised carefully. The executor will need to ensure
or that required participation by the deceased and that sufficient evidence is provided to validate the claim
cannot be done by another person. An example is found itself and the amount due. Legal advice may be
in the case cited for this rule where the deceased was required. See 11.12.4, Defences and Other
contracted to write a book. Considerations.
What should an executor advertise for creditors? 11.11
- An executor will be liable to creditors if proper debts are not paid and therefore executors will often
advertise for creditors
- Advertising helps bring closure to the question of potential liabilities and can get protection from
legislation
- The purpose of the time period set out in the notice is to allow the creditor time to advance a claim
What are the general rules for advertising for creditors? 11.11
1. The notice/advertisement should be in the jurisdiction where the deceased lived and/or conducted any
business. It may be necessary to consider multiple jurisdictions.
2. The notice/advertisement must indicate that after the date set out in the notice, the estate may be
distributed. The date set must allow for a minimum period of time within which claims can be made. If
there are multiple advertisements, the date selected must be counted from the date of the last
publication.
3. All jurisdictional rules, if any, must be complied with in order for the notice/advertisement to be effective
for purposes of ensuring that the executor will be protected from future liability. This often includes the
information to be communicated, the date after which the estate may be distributed, and how to make a
claim.
What should executors do before paying debts? 11.12.1
The executor must pay “just” debts. The law requires the claimant to “corroborate” the claim by providing
evidence to support the claim. The executor must then review that evidence
11.12.1.1 The Burden of Payment
- Generally speaking, the liabilities of the estate are paid from the residue. If that is insufficient, then
legacies may abate
- However, where a debt is secured by an asset (e.g., a mortgage or a charge against personal property), it
will be necessary to determine who bears the burden of payment. If the Will is silent, the executor will
look to legislation or case law guidance. The general rule under the common law is that, subject to a
contrary intention in the Will, the legatee is entitled to take personalty free of any charge.
- But the beneficiary, who receives a devise (gift of an interest in realty) that is encumbered by a debt, will
become responsible for the debt. L
What to do about share loans or credit 11.12.1.2?
Where security such as a mortgage has been granted, negotiations may be required with the lender to release the
deceased’s estate from further liability. Each situation will need to be reviewed in the circumstances and within
the context of the estate distribution.
How long does executor have to pay debts? 11.12.2
- Executor’s year
What are defenses or other considerations with debt? 11.12.4
11.12.4.1 Limitation Period Has Expired The time from which the clock starts to run will depend
One of the first considerations is whether or not the on the nature of the claim and the facts. The estate
claim is out of time. solicitor can provide advice on the applicable limitation
period and the requirements to properly dispute the
claim.
Accordingly, when the deceased is the borrower, it is

important to determine whether or not the lender can
enforce the claim. If not, and the lender makes a claim,
it may be necessary to dispute it.
11.12.4.2 Lack of Corroboration Generally, some independent evidence is required to
Where the details of a claim are not clearly support the plaintiff’s claim. This requirement has
documented in an agreement and evidence of the exact been incorporated into the legislation of some
amount due is not easily verified, the executor must provinces. Where it has not been included, executors
ensure that the claim is corroborated. may look for guidance in the common law.
11.12.4.3 Quantum Meruit Claims The executor must ensure that the services were
It is not uncommon for an executor to receive a claim provided, that the value being charged for the services
for personal services provided to the deceased by is appropriate, and that there are no circumstances that
another person where there is no signed contract or would suggest that the services were offered
agreement. When the services are services that one gratuitously, without intention or expectation of
would normally pay for, the law implies a promise to payment.
pay the value of those services.39 This is often called a
quantum meruit claim.
11 .12.4.4 Claims by Near Relatives Where the law says that the presumption applies, the
When there is a relationship between the deceased and claimant will bear the burden of proof to show that
the claimant, there may be a presumption under the there was an intention or promise to pay.
law that the services were provided out of love and
affection or for mutual convenience. Each situation
must be examined on the facts, including the nature of
the relationship
11.12.4.5 Legacies to Creditors The general law is that if the legacy is a sum of money
If the deceased leaves a legacy in the Will to a creditor equal or greater than the debt, then the legacy is paid
but is silent on the debt, it is necessary to determine in satisfaction of the debt. However, the courts have set
whether or not the legacy was made in order to satisfy out a number of exceptions and at least two
the debt. jurisdictions have abolished the rule.
Tax Responsibilities 11.13.1
11.13.1 Obtain a Copy of the Last T1 Tax Return Filed by Deceased

The executor will need a copy of the last T1 tax return fi led by the deceased. Some issues, such as carry forward
items, may need to be considered before fi ling the final
or terminal return on behalf of the estate.
11.13.2 Final Tax Returns for the Deceased

The executor must fi le a final or terminal return for the year in which a taxpayer dies. Three optional returns may
also be fi led to report specific types of income. Returns for prior years must also be fi led if applicable. Each return
is discussed briefly below.
What is included in the T1 return? 11.13.3
• employment income, including vacation pay,

• business income from unincorporated businesses,
• pension income,
• income from personal trusts, and
• investment income.
In addition, the terminal return must report additional income items, including:
• the net taxable capital gain (or losses) arising from the deemed dispositions of assets,
• accrued income due to the deceased, and
• the value of RRSPs and Registered Retirement Income Funds (RRIFs) held by the deceased (subject to
certain exceptions).
What are the exceptions to the deemed disposition rules? 11.13.3.2
Although there is a deemed disposition of all property owned at the date of death, there are a number of
exceptions and/or special rules. These include:
• assets are left to a spouse or common-law partner,

• property was settled in a qualifying spousal or common-law spouse trust,
• the deceased owned farm or fishing property,
• the deceased owned eligible shares of a small business corporation, and
• the deceased died owning an RRSP or a RRIF.
• • assets are left to a spouse or common-law partner,
• • property was settled in a qualifying spousal or common-law
• spouse trust,
• • the deceased owned farm or fi shing property,
• • the deceased owned eligible shares of a small business
• corporation, and
• • the deceased died owning an RRSP or a RRIF.
What happens when a testator dies with RRSP with RRIF on death? 11.13.3.4
When an annuitant (the owner of the registered plan) dies, the FMV of his or her RRSPs or RRIFs is included as
income on the terminal tax return. This amount is called a “refund of premiums.” The beneficiary receives the
refund of premiums tax-free. The estate must pay the tax. If the estate does not have the funds to pay the tax, the
Canada Revenue Agency (CRA) will seek to have the tax paid by the beneficiary.
What are two exceptions to the RRSP/RRIF rules? 11.13.3.4
1. A Spouse Is Designated as the Successor Annuitant of a RRIF:

In this situation, there is no refund of premiums. The surviving spouse or common-law partner becomes the
annuitant and the owner of the RRIF. Tax is paid as funds are paid from the RRIF to the survivor. On the survivor’s
death, there will be a deemed disposition and the refund of premiums for the balance remaining in the RRIF will be
reported on the survivor’s terminal return.
2. A Qualifi ed Benefi ciary Is the Named Benefi ciary of an RRSP or RRIF, or Receives the Plan as Part of His or
Her Share of the Estate:
In this situation the rules allow the executor to make an election to claim a corresponding deduction for the value
of the refund of premiums. The plan is transferred to a plan for the beneficiary or, in the case of a minor
beneficiary, an annuity can sometimes be purchased. This deferral of tax is also often referred to as a rollover.
Rollovers are not mandatory and careful planning may be required to maximise the benefit to the beneficiary and
minimise the tax payable by the estate. see 11.13.3.4 for what’s a qualified beneficiary
What is the terminal return due? 11.13.3.5

• If the date of death occurred between January 1 and October 31, the terminal tax return is due by April 30
of the following year, the same date all T1 returns are due. If the date of death was between November 1
and December 31, the tax return is due six months after the date of death.
• Any taxes owing must be paid by the due date. If the taxes owing are not paid by the due date, interest
will be added to the final tax bill. If the return is fi led late, penalties will also be charged. (See 11.17,
Penalties and Interest Charges.) Extended fi ling deadlines may apply if the deceased was carrying on a
business as a partner or sole proprietor but the deadline for payment of taxes is not extended.
CHAPTER 12 – ADMINISTRATION OF PROPERTY HELD FOR OTHERS UNDER STATUTORY AUTHORITY
What does it mean to pass accounts? 12.1

- Passing accounts is the process by which formal accounting records for the assets of a trust or estate are
submitted by the trustee, attorney, guardian, or other person in charge of managing the financial affairs
and property on behalf of another person to the court for approval
What is the Public Trustee? 12.1, 12.2.4

- The public trustee is the public official who is charged with the responsibility of protecting the interests of
vulnerable and incapable persons under provincial law
- The office is sometimes called the Public Trustee or the Public Guardian and Trustee
- When an individual is found to be incapable, the public trustee may have prima facie authority to manage
the financial affairs
- The trustee, however, will generally defer to the attorney under a power of attorney or court appointed
guardian
What is a guardian? 12.1

- A guardian is a person appointed by the court to manage the financial affairs of an incapable person
When does it become necessary to provide for the management of a person’s financial affairs? 12.2
- where an individual becomes incapable, it may become necessary to provide for the management of the
person’s financial affairs
- if a power of attorney for property has been granted, the person appointed in the power of attorney
document will have the authority to act
- if the property has been transferred to a trust, it will be managed by the Trustee
What happens if there is no power of attorney? 12.2.1

- if no arrangements have been made to manage the financial affairs of an incapable person, generally the
courts will have jurisdiction granted under provincial law to appoint someone called a guardian
- alternatively, the public trustee or other provincial official may have authority to manage the affairs of the
incapable person
What is the process for guardianship? 12.1.1

- an application for guardianship will be subject to the provisions of the substitute decisions act
- the SDA provides for notice requirements for interested parties and sets out the priority of who may apply
- the legislation may also require
• posting a bond or other security equal to the value of the assets of the incapable person,
• a management plan setting out the manner in which the assets will be invested and managed,
• regular reporting and accounting to the public trustee,
• an assessment of capacity if a finding has not already been made,
• notice to and consent of relatives and third parties including the public trustee, and
• relationship to the incapable person and reasons he or she should be appointed.
What capacity assessments are required for an application for guardianship? 12.2.2
- an assessment of capacity is generally required by legislation when making an application for guardianship
- the SDA provides the procedure to obtain the capacity assessment
- the assessor means the class of people who are designated by the regulations who can assess capacity
Assessment of capacity for statutory guardianship
16 (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s
own capacity for the purpose of determining whether the Public Guardian and Trustee should become the
statutory guardian of property under this section. 1996, c. 2, s. 10.
Form of request
(2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in
respect of another person, the request states that,
(a) the person requesting the assessment has reason to believe that the other person may be incapable of
managing property;
(b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the
existence of any attorney under a continuing power of attorney that gives the attorney authority over all
of the other person’s property; and
(c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse,
partner or relative of the other person who intends to make an application under section 22 for the
appointment of a guardian of property for the other person. 1996, c. 2, s. 10; 2016, c. 23, s. 70 (2).
Certificate of incapacity
(3) The assessor may issue a certificate of incapacity in the prescribed form if he or she finds that the person is
incapable of managing property. 1996, c. 2, s. 10.
What are the duties of Attorneys and Court appointed Guardians? 12.2.6
- the SDA provides the duties of the attorney or guardian but generally require both to act in a fiduciary
duty in the best interests of the incapable person and to account for the management of property
- an attorney has a duty to account and during incapacity may be compelled by third parties to prepare and
pass accounts
- Re Vickers Estate a guardian is under no duty to preserve the capital of the estate of the incapable person
for the benefit of the estate beneficiaries
What happens if someone is missing? 12.3
- Under Absentee’s Act, a person may apply to the court to have a person declared missing and the court
may appoint a person to manage the financial affairs such person
- The public trustee may also be appointed to manage the property of an absentee
- The person applying will have powers granted to them similar to what a court appointed guardian may
have
What if someone is presumed dead? 12.4

- The Declarations of death act may provide for an application for presumption of death
- This is made after a period of seven years absence but it can be a shorter period if there are certain
factual situations such as circumstances of peril
- If the application is granted the estate of the absentee may be administered and distributed as if the
person were deceased
- The order of death must specify the date on which the person is presumed to have died
CHAPTER 13 – ESTATE AND TRUST ACCOUNTS
What are generally the duties of a trustee/executor regarding accounts? 12.3.1
The trustee has an obligation to:

- Keep trust property separate from person assets
- retain original documents for every transaction and record, including any paper trail such as receipts,
invoices, bank statements, investment statements, and the like,
- report to beneficiaries on a regular basis, and
- pass accounts when requested or required.
Why are accounts required by a trustee? 13.2.2

- duty to keep adequate records and accounts is a paramount responsibility and part of their fiduciary duty
- the records and accounts must be produced for inspection to those entitled under legislation and upon
request
- any expense incurred by the trust, estate, beneficiaries, or other fiduciary caused by the failure to provide
accounts will be the personal expense of the trustee or other fiduciary
- the obligation to keep accounts is also founded on the fiduciary obligation to act in the best interest of the
beneficiary
- if called upon the trustee must be able to demonstrate they have managed the property responsibly and
in the best interests of the beneficiaries
- this can only be done if proper accounts are kept
Other than legal, what are benefits of keeping accounts and providing information to beneficiaries? 13.2.2
- issues can be dealt with before they grow to become problems by permitting inquiries to be made
- creates an environment of trust and cooperation between the parties
- reduces the risk that beneficiaries will refuse to approve informal accounts, demand a formal passing of
accounts, raise objections upon passing account
- protects the trustees from accusations of impropriety
- assists with the preparation of tax returns
- keeps a record of financial information that may be the basis for trustee compensation
When does a Trustee have to provide information to beneficiaries? 13.2.3

- trustees do not have an obligation to volunteer information however they must provide it if is requested
by a beneficiary or other as provided by statute
- it may be good policy for a trustee to provide information voluntarily and make regular, informal reports
Other than beneficiaries who else may be entitled to information from the trustee? 13.2.3
- in some cases persons other than beneficiaries may have a right to information or accounts if they have
an interest in the estate
- these third parties may include creditors or the public trustee on behalf of a minor, incapable person, or
charity
- such parties may also have a right to compel passing of accounts
What type of accounting is used for trust accounts? 13.3.1

- trust accounting is cash accounting in that all financial transactions are categorised as either income
(revenue) or capital, and as either receipts or disbursements
- note that trust principles, not tax principles apply, for example if a capital asset is sold at a gain, the entire
proceeds are recorded as capital, even though for income tax purposes a portion of the receipt would be
included as income
What information should accounts generally include? 13.3.2
There is no specific form required unless accounts are required to be passed in which case there is a court form,
generally accounts should include:
- statement of original assets

- statement of all money received
- statement of all money disbursed
- statement of all investments purchased and sold
- statement of all property remaining on hand at the time the accounts are prepared
- statement of liabilities at the time accounts are prepared, and
- statement of compensation claimed by the trustee
What is passing accounts? 13.4
- the requirement to pass accounts is like an audit of the financial records of the trust or estate
- it is the process by which formal accounting records for the assets of a trust or estate, including the
“estate” of a living person, are submitted by the trustee, attorney, guardian, or other person in charge of
managing the financial affairs and property on behalf of another person to the court for approval
When as passing of accounts required? 13.4.1

- the beneficiaries, public trustee, creditors, or other persons having an interest in the trust or estate may
require accounts to be passed
- when a trustee does not cooperate, a court order may be obtained to compel passing of accounts
- in Ontario there is no obligation to pass accounts and it is generally done only at the request of a
beneficiary due to conflicts or where there are minor or incapable beneficiaries
Why may a trustee voluntarily pass accounts? 13.4.1
- a trustee may voluntarily decide to pass accounts even if not required

- if a trustee decides it is not necessary and there is no request by the beneficiaries, an estate or trust can
be administered and distributed without passing accounts
- as an alternative to passing accounts, the trustee may request the beneficiaries to sign releases and
approvals of the accounts
- if beneficiaries refuse to sign releases and approvals, the trustees must pass accounts, and the additional
cost of the application, assuming there is no wrongdoing on the part of the trustee, will generally be paid
out of the trust or estate
- it may also be necessary to pass accounts to discharge any bond or other security required to be posted
by an executor or trustee
- passing accounts is strongly recommended if the estate is insolvent or there is a deficiency in assets
resulting in abatement
What are some common issues that arise when passing accounts? 13.4.2
The most common objections and complains with accounts involve:

- trustee or executor compensation
- alleged breaches of trust
- failure of the trustee or executor to demonstrate the standard of care required in discharging their duties
- inadequate sale price on disposition of an asset
- failure to act impartially
- conflict of interest
- improper investments resulting in loss or opportunity, and
- excessive expenses such as professional fees
Where there is an objection, there is a formal process to file a notice of objection after the application to pass
accounts has been served
What is the process to pass accounts? 13.4.3

- accounts must be prepared in the required court format under provincial rules and verified by a sworn
affidavit
- beneficiaries and interested parties must be served notice of the request to pass accounts and may object
to the passing of accounts
o there may be special notice provisions for minors, incapable persons, and charities
- if there are no objections then the accounts may be passed over the courter registrar without a hearing
o courts will not pass accounts unless they are satisfied there are no deficiencies or irregularities
- the court has the discretion to inquire into any matter with respect to the administration of the estate,
including any alleged misconduct of the trustees, and provide for relief. The court may:
o inquire into any complaint or claim of misconduct,
o require additional information be submitted,
o hear evidence,
o decide any disputed matter,
o order a trial of an issue,
o vary the compensation of the trustee,
o assess any legal bill charged to the estate, and
o award damages payable to the trust or estate.
- Once the accounts are passed, the court will issue an order approving the accounts.
What is the effect of passing accounts? 13.4.4

- An order passing accounts will bind the beneficiaries with respect to any objections for the accounting
periods covered by the order
- The order will also relieve the trustee of any future liability with respect to trust property for the period
except in case of fraud, mistake, or non-disclosure
- Passing of accounts bring closure to any objections and relieves the trustee of liability
Who bears the costs of passing accounts 13.4.5?

- Estate bears the cost unless there was wrongdoing
- The executor can also claim compensation for time and effort spent to pass accounts
What are the common-law rules relating to executor taking compensation? 13.6
Since a trustee has a duty of loyalty under common law it would have been a conflict of interest to take
compensation unless an exception applies
1) The trust has a charging provision where the settlor permits the conflict of interest in the trust and
provides for compensation
2) The beneficiaries are adults with full capacity and consent to the compensation
3) The courts use their inherent power to allow for remuneration – this, however, is rarely used
- A professional who fails to keep records of time spent providing professional services to the estate
separate from the time spent performing executor’s duties may find problems passing accounts an having
compensation approved
- If the fees for services include services that should have been performed by the trustee, the professional’s
executor compensation may be reduced by their fees 13.6
What are two main methods involve charging provisions for compensation? 13.7
1) Incorporating the terms of payment into the document. Re Bryan Isard – the provision must be clearly
spelled out in order to binding
2) Enter into a compensation with the executor setting out a detailed fee schedule which is incorporated
into the Will by reference
How does the Trustee Act deal with executor trustee compensation? 13.8.1
- The Trustee Act allows for compensation that is fair and reasonable for the care, pains and trouble and
the time spent in administering the estate or trust
Allowance to trustees, etc.
61 (1) A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care,
pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior
Court of Justice. R.S.O. 1990, c. T.23, s. 61 (1); 2000, c. 26, Sched. A, s. 15 (2).
Does a trustee require consent to compensation? 13.9
- Subject to a compensation agreement in a trust, an executor must obtain approval to the proposed
compensation before charging the fees to the trust
- There are two ways to obtain approval:
o Beneficiary approval – if beneficiaries are adults and have capacity they may approve an
executor’s compensation
 If a trustee is looking for interim fees and not at final distribution it is only possible if all
current, future, and contingent beneficiaries consent
 The request should be in writing and details the calculation of compensation
o Court review – where consent cannot be obtained then executor can apply to court for a passing
of accounts to seek approval to the compensation claimed
How is compensation for executors calculated by the courts? 13.10
- In Ontario, where there is no compensation agreement, the general rule is to charge up to 2.5% on the
value of the asset or cash received, including revenues, and 2.5% on the value of the asset or cash
distributed. Because the initial charge to the capital is based on the date of death value of an asset, if the
asset is sold at a gain, an additional fee is charged against the gain when it is realised.
As a result, a percentage tariff calculation has been developed through case law, which now serves as the baseline
for the calculation of executors’ compensation. The tariff sets claimable executor’s compensation at 2.5% of the
value of each of the capital receipts, income receipts, capital disbursements and income disbursements, and also
permits an overall care and management fee of 2/5 of 1% of average annual value of the assets.
However, estates can vary widely depending on the type and value of assets, the number and location of
beneficiaries, whether there are claims against the estate and the expertise required of the executor. As the tariff
percentages do not consider the actual time and efforts exerted by the executor, sole use of the tariff percentage
calculation can result in inadequate compensation in the case of a complex estate or disproportionate
compensation in the case of a simple estate.
What are factors that determine fair and reasonable compensation? 13.10.2.1
Therefore, in determining whether the tariff calculation is in fact “fair and reasonable”, the courts will generally
have regard to the five factors set out in Re Toronto General Trust v. Central Ontario Railway Co. (1905), 6 O.W.R.
350 which provides a factual analysis of the actual work completed by the executor or trustee. These factors
include:
- the size of the trust,

- the care and responsibility involved,
- the time occupied in performing the duties,
- the skill and ability shown by the executor or trustee, and
- the degree of success resulting from the administration.
What are factors that can reduce the compensation allowance? 10.10.2
- an executor’s compensation may be disallowed where the trustee has been guilty of serious misconduct
- compensation might be disallowed if the wok done was totally unnecessary or if the trustee accepted the
role for no compensation
- compensation may also be reduced by the amounts paid to agents who assisted the executor and carried
out tasks that the executor could have performed personally
Can an executor pre-take compensation? 13.1.4
- Where an executor pre-takes compensation, he or she may be ordered to repay the amount in excess of
the amount finally approved, with interest, from the time of pre-taking
- Two schools of thoughts
o Pre-taking is not permitted and a breach of trust
o As long as the fees taken do not exceed the final amount approved it’s not a breach. William
George King Trust noted the burden of the cost to trust if annual applications are made each
year to pass accounts and obtain the fees
How do multiple trustees share compensation? 13.11
- Courts look to compensation for the general work done

- Court does not become involved in the division of compensation among trustees
- A dispute of the split of fees will need a separate action
What is a legacy in lieu of compensation? 13.14
- If a will leaves a legacy to the executor there is a rebuttable presumption that the legacy was intended to
be in lieu of compensation
- The executor will have to show that the legacy was intended to be in addition to compensation
- Widdlefield – factors court looks to include amount of legacy, gifts to other beneficiaries, and wording
used
What indemnities for expenses can a trustee take?
- Common law recognizes trustees should be reimbursed for proper expenses required in administration
- Beneficiaries may dispute for various reasons:
o Necessity of expense
o Reasonableness of amount
o Decision as whether the expense should be born by the capital beneficiaries or the revenue
beneficiaries
o Executor or trustee is personally liable for expenses or liabilities under a contract
- If there is a dispute then passing of accounts may be required
o Generally if the expense was in good faith and the expenditures benefits the estate, it will be
approved
What if the trustee provides professional services? 13.15.3
- When an executor or trustee is also providing legal services to a trust, it is necessary for the Will or
trustee to specifically permit the executor or trustee to charge his or her professional fees for those
services.
- Where an executor or trustee is providing legal services in addition to executor or trustee services, the
legal services should be identified separately from executor and trustee services to avoid any confusion as
to the basis for the expense and the methods used to determine the amount due
How are substitute decision markers compensation? 13.16
- Substitute decision makers for financial affairs are allowed to be reimbursed for their property expenses
- Ontario has a prescribed fee scale for substitute decision makers under the SDA
o 3% on capital and revenue receipts,
o 3% on capital and revenue disbursements, and
o an annual fee on the average market value of the assets at the rate of 0.6% or 3/5 of 1%.
The guardian or attorney may apply to the public guardian and trustee for an additional allowance.
CHAPTER 14 – FOREIGN PROPERTY, MUTIPLE JURISIDCTIONS AND SUCCESSION
In Canada, when can the laws of a province or territory other than that of residence may apply. 14.2
- there is property in another jurisdiction
- there is a dependant or beneficiary in another jurisdiction, or
- the individual is domiciled outside the province or territory of residence
When may the laws of a foreign jurisdiction apply even when an individual is reside of Canada? 14.2
- the individual has his or her domicile in another country even though resident in Canada
- the individual is a citizen, sometimes called a “national” of another country, or
- property is located in another jurisdiction
What issues does conflict of laws deal with? 14.2

- which court has jurisdiction to determine an issue,
- which law applies to a particular issue, and
- whether a court will enforce the legal judgement of another jurisdiction
What are four considerations to determine conflict of laws? 14.2

- the “situs” of property, or its location for legal purposes, which is divided between movable and
immovable property under common-law principles with different choice of law rules for each type
- citizenship
- domicile
- residence
What are three types of domicile? 14.3

Laws relating to personal matters of individuals, including laws of succession, are usually decided on the basis of
the laws of the place where the individual has his or her permanent home. There are three types of domicile.
1. The domicile of origin is determined at birth by the place of birth and will continue to be the domicile of
an individual throughout his or her life unless one of the other domicile rules subsequently applies.
2. Domicile of choice is the place where an individual, after attaining the age of majority, takes up residence
with the intention of remaining indefinitely.
3. Domicile of dependency is conferred by operation of law upon those persons who, by reason of legal or
mental disability, are unable to acquire a domicile of choice, including minors and certain mentally
incapable persons.
Domicile may be the place where the person has his or her residence or the place where the person has the centre
of his or her affairs, the seat of his or her wealth, and the affection of his or her family.
What is the difference between movable and immovable property? 14.4

Movable property includes any property that is portable. The legal definition of movable property includes all
personal property, such as goods, chattels, and personalty. It also includes intangible property, such as negotiable
instruments and securities.
Immovable property includes real property, anything permanently affixed to real property, or any interest in real
property. Immovable property includes land, buildings, mining rights, leaseholds, and rights to receive rent or
income from real property. The situs of property is the location of property for legal purposes, such as taxation.
Application of Law Governing Succession The choice of law that applies for the purposes of
succession depends on whether the property is
Canadian courts generally takes the position that they movable or immovable
have no jurisdiction with respect to land or real
property outside Canada For movable the law of domicile governs
For immovable property the law of jurisdiction where

the property is located (“lex situs” governs)
Law Governing Estate Administration The law of administration of the estate generally is the
law of the country where the personal representative
Within Canada the grant is usually issued from the received the original grant of probate
jurisdiction in which the Canadian resident had his
residence or where his or her property is located. Once the grant of probate has been issued in the
principle jurisdiction, the grant may be used in another
jurisdiction as an ancillary grant or resealed grant, to
deal with property in that other jurisdiction.
Law Governing Succession of Property With respect to matters of succession relating to
distribution of property to beneficiaries, including
intestate distribution, capacity to make a will, and
dependant relief is governed by
Movable: the law of the last domicile of the deceased

for movable property and
Immovable: by the law of situs of immovable property.

Intestate Distribution within Canadian Provinces and For the purpose of distribution within Canadian
Territories jurisdictions
The courts have resisted this result, tending to Movable: the law of domicile applies to movables
avoid “double dipping” by restricting the aggregate
preferential share to the highest Immovable: the last of the situs will apply
amount available among the relevant jurisdictions.
Testamentary Succession within Canadian Jurisdiction The law of testamentary succession includes the formal
validity of a will, capacity, essential validity of the Will,
and interpretation of the Will Essential validity of a will
includes questions such as the validity of gifts to
witnesses or relatives of witnesses, forced heirship,
compliance with the RAP, and accumulations, the
validity of charitable gift, testamentary capacity, and
whether a will was a free and voluntary and not subject
to fraud, mistake or undue influence.
Movable: the law of last domicile of the deceased
Immovable: law of situs
Dependant Relief in Canada The ability to make a claim for dependant relief within
Canada, in terms of the court’s jurisdiction, is not
necessarily confined to the laws of the jurisdiction in
which the deceased was domiciled. Generally the
applicable legislation contains no conflict of laws rules.
An award for relief affects testamentary freedom. In
Corlet, a widow who had resided with her husband in
Alberta at the time of his death was not entitled to
make a claim for dependant relief in Alberta because
her husband was domiciled outside the province at the
time of death and all property consisted of movables,
which as a result were not considered to be property
located in Alberta or subject to such claims.
What is forced heriship? 14.6

- Refers to laws that limits testamentary freedom by providing that on death property must pass to certain
family members of the deceased.
- Forced heirship provdies a forumal for distribution among family members that overides or takes
precedence over the Will
- Generally transfers on death that violate the forced heirship rules are void or voidable or the property
may be clawed-back into the estate
Question 3 in example
- Beatrix died domiciled in Ontario
- Testate/intestate
o Horses in Utah
o Home in Italy
o Paintings in Italy
o Lives in Toronto
o Problem interpreting her will – domicile in Ontario so governed by Ontario
o Questionswhether she was capable when it was executed – domicile in Ontario
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CHAPTER 1 – POWERS OF ATTORNEY FOR PROPERTY

What capacity is required to grant a power of attorney for property?

Capacity to give continuing power of attorney

8 (1) A person is capable of giving a continuing power of attorney if he or she,

What are the limits of an attorney’s authority? 1.5.1

Differentiate power of attorney from a trust

Disposition of property given by will (SDA)

How are attorneys compensated for their time and expenses?

3% on capital and income received by you;

How can an attorney be terminated?

12 (1) A continuing power of attorney is terminated,

What are some factors as who should be attorney? 1.4.2

 Stay within the scope of the authority delegated;

What are possibly some remedies if an Attorney actss inappropriately? Q5

What happens if there is no POAC?

What is a personal Directive?

What is a living Will?

Can I express my wishes in advance?

Is an “advance directive” the same thing as a “Power of Attorney”?

53 (1) A power of attorney for personal care is terminated,

(i) another attorney is authorized to act under subsection 46 (5), or

Who is eligible to act as attorney? 2.10.1

What are some factors as who can be a POAC? 2.10.2

What are the types of Wills?

What are four essential elements for a document to be a Will? 3.2

1. There must be a clear intention to dispose of property.

What are the requirements for a Will to be enforceable? 3.3.1

• the testator having knowledge and approval of the contents,

In general, conventional Wills have four major requirements.

1. The Will must be in writing.

What is substantial compliance? 3.3.3

What are the requirements for testamentary capacity? 3.3.4

What is undue influence and how does it affect a Will? 3.3.5

What may give rise to suspicious circumstances? 3.3.7

How does Fraud affect Wills? 3.3.8

How is a Will revoked? 3.5

15 A will or part of a will is revoked only by,

(a) marriage, subject to section 16;

How does marriage affect a Will? 3.5.2.1

16 A will is revoked by the marriage of the testator except where,

How does divorce affect a Will?

(b) an appointment of his or her former spouse as executor or trustee; and

What are Gifts Donatio Mortis Causa?

The requirements include:

What types of gifts can be made in a Will? 3.8

Devises Gifts of real properties

What is lapse? 3.8.2

What is anti-lapse legislation? 3.8.3

(b) if that person had died intestate;

(c) if that person had died without debts; and

What are some will substitutes? 3.6

Disposition of property given by will

What is abatement? 3.8.4

1. the residue of the estate is reduced first until it is exhausted;

What are some limits of testamentary freedom? 3.9

• the gift is contrary to public policy,

What are the solicitor’s duties in taking instructions? 4.2

What types of notes should be kept by the drafting solicitor? 4.2

• To whom is the testator providing support or assistance?

What is a solicitor’s liability to a disappointed beneficiary?

What are some attributes to look for in selecting an executor? 4.2.4.1

What is a corporate executor?

What are the advantages of using a corporate executor? 4.2.4.3

What is a survivorship clause and what is its purpose? Q5