July 2024

The Foundation Perpetuity Myth

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The philanthropic community has a perpetuity obsession.  Critics of perpetuity believe that preserving capital, restricting payout, and existing forever is the pernicious norm.  Admittedly, for some foundations, perpetuity a sacred ideal, an aspiration that is sometimes unquestioned.  Foundations that “spend-down” are valorized as rare entities that value community impact over capital.  But the reality is more complex.  There is a long history of foundations that aren’t perpetual, and in Canada….

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Philanthropy/Charitable Giving, Uncategorized

Who holds the burden of proof when undue influence is claimed?

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A man photographs seagulls.

In the estates context, undue influence is often alleged in order to challenge a will or an inter vivos transfer of property, often a family home or cottage. When a party in a legal dispute alleges that there was undue influence which party bears the burden of proving (or disproving) whether this is true? Will challenges Generally speaking, if a will meets the criteria for formal validity, it will be….

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Elder Care, Estate Litigation, Joint Tenancy, Power of Attorney, Succession Planning, Testamentary Capacity, Undue influence, Wills

Inheritance Tax – Why should you care?

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The Canadian concept of taxing the deceased by deeming a disposition at death is contrary to many countries where the inheritance tax is paid by the heirs upon receiving money or properties from a deceased person. In other words, while Canada taxes the deceased on death, most countries – notably most countries in the European Union (EU) – tax the beneficiaries. Therefore, any proceeds received as a consequence of death….

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Estate Administration, International, Tax Issues

Controversies in Substitute Decision-Making Concerning Shelter for Alternate Level of Care Patients

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Recently, an elderly patient suffering from moderate-to-advanced stage dementia, with behavioural complications, was hospitalized on a psychiatric admission. The patient, who was declared incapable to consent to treatment, was initially held involuntarily under the Mental Health Act, RSO 1990, C M.7 (the “MHA”). The patient had appointed a cousin as their attorney for property and personal care. However, the cousin could not be located and there was a concern that….

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Caregiving, Elder Care, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes

Real Estate in Estate Planning: Tax Consequences

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Today’s blog was written by Jessica Butler, Law Clerk at Fasken LLP. Many Canadians hold a large share of their wealth in personally-owned real estate and consider it to be a critical part of their wealth-building strategy. Donald Sutherland, the well known Canadian actor who passed away in June of this year, is purported to have had a multimillion dollar real estate portfolio at the time of his death. For….

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Estate Planning, Probate Tax, Property, Real Estate, Tax Issues, Uncategorized

Dependant and non-dependant beneficiaries

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One kind of claim that estate litigators often bring against an estate is a claim for dependant’s support. These claims are made pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and are commenced by way of application. The core of such a claim is that the deceased testator did not provide adequately for a dependant, whom the deceased was supporting prior to….

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Dependant Support, Estate Litigation
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