Author: Bibiane Bijsterveld

To Be or Not To Be – The Executor: His Powers, Obligations and Liabilities

Genevieve N. Taylor and Christine M. Muckle

INTRODUCTION The position of executor brings with it incredible responsibility and serious potential for liability. Although the fees awarded for fulfilling the duties may seem generous, in all honesty, you are paid for what you get.   A person should consider a number of factors, before agreeing to assume the role of executor.  Consideration should be given to the time involved, the level of remuneration, the personal relationship of the appointee with the beneficiaries, the character of each of the beneficiaries, the nature of the testator’s assets, the particular terms of the Will and the potential for…

All Trusts, All the Time – Implied, Resulting and Constructive Trust Claims

I.     Introduction The concept of who actually owns an asset arises frequently in the areas of both family and estate law. Families often transfer ownership to real estate and other assets without considering the legal consequences of the transfer. The transfer of an asset may be from one spouse to another, from a parent to a child, or even just the promise of a transfer in the future, leading to a course of conduct on the part of the person believing they will be a future owner. Whether the issue of ownership arises upon the dissolution of a marriage, or a marriage like relationship, or the death of a…

Taxable Dispositions and Deferrals

Genevieve N. Taylor

I. Overview In the course of an estate plan, the spectre of tax dispositions can cast a long shadow over otherwise desirable plans. Likewise, when administering an estate the deemed disposition triggered by death can create havoc for an estate’s administration. This paper will (a) outline common circumstances in which a disposition of property may give rise to tax and (b) discuss steps that may be taken to defer the taxes payable to a later date or manage the payment of such taxes. We begin with an overview of what is a taxable disposition under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the "Act") and…

Transfers to the Corporation: Section 85 Rollovers

Nicholas P. Smith

I.     INTRODUCTION S.85(1) of the Income Tax Act (Canada) (the “ITA”)[1] allows a person to transfer property to a taxable Canadian corporation on a tax-deferred basis.  This rollover allows a person to defer the recognition of income, capital gains and/or recapture. II.     ELIGIBILITY REQUIREMENTS The eligibility requirements for a tax-deferred transfer under s.85(1) are discussed below.      A.     TRANSFEROR The person transferring the property must be a taxpayer as defined in the ITA.[2]  This includes individuals, corporations and trusts regardless of whether they are resident or…

The Final Step: Passing the Accounts in a Contentious Estate

I.       Introduction A.     Then and Now: The Duty to Account All personal representatives and trustees (throughout this paper the term “trustee” represents both a true trustee and personal representative) have a duty to account to persons with a beneficial interest in the estate (Deutschmann Estate v. Fallis, 2011 BCSC 1009 at para. 53, affirmed 2011 BCCA 404). The origins of the duty to account are traced, as with much of the law in the area of wills and estates, to the Ecclesiastical Courts of England. In his paper “The Last Word: Passing the Accounts in a Contentious Estate”, Scott Kerwin…

The Taxation of Medical Marihuana: Goods and Services Tax, Harmonized Sales Tax and Provincial Sales Tax (British Columbia)

Alistair G. Campbell

A.     INTRODUCTION   The purpose of this paper is to address the application of the federal Goods and Services Tax (“GST”), Harmonized Sales Tax (“HST”) and British Columbia provincial sales tax (“PST”) to sales of medical marihuana.[2]  By “medical marihuana”, the paper refers to dried marihuana that is sold as a medication to mitigate the symptoms of a disease, disorder or abnormal physical state or its symptoms.  We do not address the taxability of sales of marihuana for recreational uses. The discussion in this paper applies to GST/HST, which applies throughout Canada (at a rate of…

International and Interprovincial Tax Planning Issues for Individuals and Trusts

Nicholas P. Smith

I.     INTRODUCTION Planning for clients with assets and beneficiaries in multiple jurisdictions requires knowledge of residency and the deeming rules that could alter its common law meaning. The interprovincial source rules for the taxation of individuals and trust income are critical in planning as investment income is taxed based on residency while business income is taxed based on its source. The use of interprovincial trusts in tax planning can have benefits for clients in British Columbia given the significantly lower tax rates in Alberta for dividends. However, this type of planning requires careful…