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Archive For Entries On Wills, Estates, and Trusts

Morassut v Jaczynski: Property Division for Common Law Spouses by Stealth?

One of the criticisms laid against Ontario’s family law and succession law statutes is that they do not make allowance for people living in non-traditional relationships. The law provides a comprehensive formula for property division for married people when they divorce or one of them dies, but there is no similar entitlement for “common law” […]

Ontario Superior Court Sets Aside Will for Public Policy Grounds: Spence v BMO Trust Company

Last month, in Spence v BMO Trust Company, 2015 ONSC 615 [Spence], the Ontario Superior Court of Justice set aside a will for being contrary to public policy, as the testator’s motivation for excluding one his daughters from his will was racially motivated.

The Supreme Court Redefines Resulting Trusts and the Legal Meaning of “Gift” in Nishi v. Rascal Trucking Ltd.

The tangled case of Nishi v. Rascal Trucking Ltd., 2013 SCC 33, is a classic example of the complicated conflicts that can occur when people mix business dealings with personal friendships.   The unanimous decision of the court appears to reaffirm the doctrine of purchase money resulting trust.   However, Justice Rothstein managed to do it in […]

Bentley v Anglican Synod of the Diocese of New Westminster: The Might of Religious Doctrine

In the late 1990s, the New Westminster diocese (“territory”) of the Anglican Church of Canada (“ACC”) convened a synod (“council”) in order to consider the question of whether clergy ought to bless same-sex unions. In 1998, the Diocese decided to permit, though not require, clergy to perform liturgical blessings for same-sex couples. In 2002, the […]

Antle v Canada (2010): That Trust was a Sham!

Last month, the Federal Court of Appeal, in Antle v Canada, 2010 FCA 280 [Antle 2010], upheld the Tax Court of Canada decision in Antle v. The Queen, 2009 TCC 465 [Antle 2009], finding that an offshore spousal trust was not valid. Both courts agreed that the primary purpose of the spousal trust was to […]

Caisse Populaire Desjardins de Montmagny: Crown Does Not “Own” Unremitted GST Amounts

The only surprising thing about the recent Supreme Court of Canada (“SCC”) decision in Quebec (Revenue) v Caisse Populaire Desjardins de Montmagny, [2009] 3 SCR 286 [CP Desjardins de Montmagny] is that the Quebec Superior Court (“QCSC”) at first instance found in favour of the Crown in all three cases from which the appeals arose. The issue […]

Validity of trusts and GAAR applicability: Antle and Garron

Offshore trusts have become an essential element of successful tax planning. Trusts are used as tax planning vehicles as they are considered a separate legal entity from the individual. Thus, the income and assets of the trust are excluded from the individual’s estate for tax purposes. A previously successful, but now uncertain, strategy had used […]

Garron: Determining Residence of Trusts

Offshore trusts are major tax-planning and estate-planning tools which can be used to protect assets from taxation and to defer accrued capital gains for a long term. For all such planning tools to work, however, the “offshore” aspect of the trust—that is to say its non-Canadian residence—has to be a central feature of the structure. […]

Presumptions of Resulting Trust and Advancement: Madsen Estate v Saylor and Pecore v Pecore

Earlier this year, the Supreme Court of Canada (“SCC”) concurrently released judgments in Madsen Estate v Saylor, 2007 SCC 18 [Madsen Estate], and Pecore v Pecore, 2007 SCC 17 [Pecore], a pair of cases regarding the disposition of monies from joint bank and investment accounts shared by a parent with an adult child. Through these two cases, the SCC clarified the […]

Buschau v Rogers Communication

In 1994, in the case of Schmidt v Air Products Canada Ltd, [1994] 2 SCR 611 [Schmidt], the Supreme Court of Canada (“SCC”) established a new direction for the law of pensions by holding that a pension trust is a classic trust, “subject to all applicable trust law principles.” Commentators at the time argued that the […]