C'est la Vie Estate Law Blog

As of January 1, 2022, amendments to Ontario's Succession Law Reform Act (SLRA) can disqualify separated spouses from inheriting from one another. These changes apply whether a person has a Will (testate) or dies without one (intestate). To inherit despite separation, a Will must explicitly state such an intention. These amendments ensure that separated spouses are treated similarly to divorced individuals regarding inheritance rights. Previously, only divorced spouses were barred from inheriting under an ex-spouse's Will or intestate estate. However, it’s crucial to note that there are specific timing criteria, and the new regulations do not apply to all separated spouses. The changes stem from Bill 245 – the Accelerating Access to Justice Act, 2021. Section 17 of the SLRA was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals.  For the purposes of these amendments, spouses are considered "separated" if: ...

Having a U.S. executor in a Canadian will can present practical, legal, and tax implications. Executors are responsible for administering the estate, and their residency can affect the estate’s administration and tax status, particularly when one is outside of Canada. Here are the key considerations: 1. Residency and Tax Implications Canadian Estate Residency : An estate is generally considered a resident of the country where the majority of its executors reside. If a U.S. co-executor is involved, the estate may be deemed a non-resident for Canadian tax purposes, leading to: Potential exposure to U.S. estate taxes. Loss of graduated tax rates on income earned by the estate in Canada, as the estate could be taxed as a trust for non-residents. Tax Filings in Both Countries : The co-executor in the U.S. may need to file returns in both Canada and the U.S., increasing complexity and administrative burden. 2. Practical Challenges Cross-Border Coordination : The U.S.-based co-executor may fa...

  If you’re acting as an attorney for property and the grantor has dementia, deciding whether gifts can be given requires balancing their wishes with your legal responsibilities under Ontario’s Substitute Decisions Act , 1992 (SDA) . Your Authority to Give Gifts As an attorney for property, you can only make gifts on the grantor’s behalf if: Explicitly Authorized : The Power of Attorney (POA) document specifically permits gifting. Statutory Rules Apply : If the POA document is silent, the SDA allows gifts under these conditions: The grantor’s financial needs (current and future) are secure. The gift is consistent with the grantor’s past practices or known intentions. Assessing the Grantor’s Wishes If the grantor, even with dementia, expresses a desire to give a gift: Evaluate their capacity : Ensure they understand the nature, value, and consequences of the gift. If their capacity is uncertain, seek a professional assessment. Respect their history : Consider their past gifting prac...