News & Publications

Wills & Estates

What happens if a deceased’s will is lost? What if it has been destroyed?

Written by on August 12, 2016.

Estate trustees - an individual (or individuals) appointed to administer a deceased's estate - may find themselves unable to locate the original copy of the deceased's Will. Perhaps the Will has been misplaced, or destroyed. What is to be done in these situations? Luckily, the Rules of Civil Procedure provide a way forward. In this situation your lawyer can make an application to the court. Following Rule 75.02 of the Rules of Civil Procedure, the reviewing judge may issue a Certificate of Ap...

Whittling Down Our Testamentary Freedom

Written by on January 21, 2016.

Testamentary freedom – the principle that a person of sound mind is free to leave his or her estate to whomever they like, for whatever reason, and without explanation– is a deeply entrenched notion in Canadian common law and society. However, as those of us in the estates and trust field know quite well, testamentary freedom is not absolute; it is subject to numerous constraints and limitations. One such limitation arises from the doctrine of public policy which can void bequests that a...

Removing a Court-Appointed Guardian in Ontario

Written by on December 16, 2015.

Previous articles have discussed powers of attorney and guardianships and the duties and obligations of attorneys and guardians. But what can be done when a family member of the incapable person feels that the guardian or attorney is not acting appropriately? Occasionally, supportive friends or family members may have concerns about the actions taken by an attorney or guardian and may seek to have that person removed or replaced by the court. While the standard required to remove an attorney ...

Daniel Strickland Quoted in Canadian Lawyer Magazine

Written by on October 21, 2015.

Daniel Strickland was recently quoted in Canadian Lawyer Magazine for his knowledge about estate planning for people with special needs. By Marg Bruineman Looming changes to the Income Tax Act introduce a “whole new world” to the future of estate planning in Canada, calling into question the value of the use of trusts as a tool to achieve tax savings on investments. There are also concerns that one of the changes is misdirected and could have unintended consequences. “They will ch...

The Consent and Capacity Board Cannot Appoint a Guardian of Property

Written by on October 09, 2015.

A recent article in the London Free Press[1] discussed the difficulty a local woman is experiencing in attempting to deposit a settlement cheque issued on behalf of her incapable brother. The article refers to a process whereby the individual would not have to become her brother’s official guardian for property, but could instead be appointed by a local tribunal within a matter of weeks in order to have the authority to negotiate the cheque on his behalf. However, from further investigat...

US Estate and Gift Tax: Part I – an introduction

Written by on October 05, 2015.

Canada has not had estate and gift taxes since their repeal in 1972.[i] It will be a surprise for many Canadians that they could still be subject estate and gift taxes under US tax law. Canadian residents who are not US citizens can be subject to tax on assets owned in the United States including US real property and stocks. Overview of US tax attributes The US Internal Revenue Code (IRC) imposes tax liability depending on a taxpayer’s classification as: (1) a US citizen; (2) a US resident a...

Qualified Disability Trusts

Written by on May 08, 2015.

On December 16, 2014, Bill C-43, Economic Action Plan 2014 Act, No 2 received royal assent. The Bill implements several tax measures included in the 2014 federal budget. The changes will come into effect January 1, 2016 and will have a significant impact on estate planning, specifically the taxation of testamentary trusts.  What is a testamentary trust? A testamentary trust is a trust, for the benefit of another, established by a person as a result of his or her death. Testamentary trusts hav...

RDSPs: working with Henson Trusts

Written by on March 05, 2015.

Prior to the introduction of the Registered Disability Savings Plan (RDSP) in 2008, the most prudent financial planning tool for parents with a child suffering from prolonged and severe disabilities was the Henson trust. RDSPs have not made the Henson trust obsolete; it can be used jointly with the RDSP to optimize the long-term savings opportunities. Trusts A trust is a legal arrangement whereby property is held by one person (the Trustee) for the benefit of another (the Beneficiary). A trust...

Capacity and Powers of Attorney

Written by on November 25, 2014.

When we speak about “capacity” in the legal sense, we are considering whether a person can make a decision in a certain set of circumstances and understand the consequences of making, or not making, the decision. The decision maker does not necessarily need to make the “best” or the “right” decision, so long as they are able to appreciate the consequences. The legal test for capacity varies based on the type of decision that the person is making. Generally, any decision will fit...

Guardianship Applications and the Substitute Decisions Act

Written by on November 25, 2014.

Usually, a power of attorney document will be used when a person becomes incapable. However, if that person did not have a power of attorney for property or personal care before they became incapable, a decision maker may have to be appointed by the court under the Substitute Decisions Act. This is known as a guardianship application. Guardians can be appointed to make personal care decisions for the incapable person or to make property decisions for the person. One person can be a guardian...