What events have occurred in the recent past that should cause us to look at our estate planning and will drafting techniques, which have so adequately served the purpose until now?
- Changes to the Civil Law of Quebec brought about by the introduction of a new code, the Civil Code of Quebec1 (the "CCQ") on January 1st, 1994, and the judicial interpretation of some of its provisions that are relevant to the subject of our discussion.
- Changes to the income tax laws.
- The fact that many more of our clients may now own assets in jurisdictions outside of Quebec, for example, real estate in Florida.
- In many cases, our clients' children have moved out of Quebec. The testator's wishes regarding their inheritances may be frustrated by the tax and civil laws of the jurisdictions in which they reside.
- The effect of the family patrimony and partnership of acquest provisions of the CCQ and similar laws of other jurisdictions on property held in the name of one of the spouses.
This list is by no means exhaustive.
The topics that I intend to cover in this paper are the ones that I consider to be of a more immediate concern, notably:
- Situs of estates and trusts.
- Debts of the estate.
- Common disaster provision.
- Particular legacies.
- The family patrimony and partnership of acquests.
- Certain registered retirement savings plan ("RRSP") and registered retirement income fund ("RRIF") problems.
Any reference in this paper to a Section of the Income Tax Act of Canada2 (as amended from time to time)(the "ITA") shall be deemed to include a reference to the corresponding Section of the Taxation Act of Quebec3 (as amended from time to time) (the "TA"). Separate reference will be made to the TA only in cases where its provisions differ significantly from the corresponding Sections of the ITA. Also, unless otherwise stated, all italics are those of the writer and has been added for emphasis.
I have, as do most professionals who do estate planning and will drafting, a few will forms that were developed by me over the years and to which I refer on an ongoing basis. All of those will forms or precedents are referred to in this paper, collectively, as "my Model", since the subject matter of the Clauses and paragraphs of wills that are considered here are generally common to all of them.
1. Situs Of Estates And Trusts.
No matter how many liquidators and trustees and alternate liquidators and trustees are named in a will, either the majority of them in cases where the majority rules, or the sole liquidator or trustee, or the ones wielding a veto power over the others, should most often, all be Canadian residents. Where a will provides for alternate liquidators or trustees to be named in the event of the inability of an original or substitute liquidator or trustee to act, the will should stipulate that the liquidator or trustee to be so appointed must be a Canadian resident within the meaning ascribed to those words for the purposes of the ITA.
These suggestions are made in order to settle for income tax purposes, the location of the residence of the estate and of any trusts that are created under the will.
Where there are several liquidators of an estate or several trustees of a trust, some of whom are non-residents of Canada, the residence of the estate or trust may be determined by analogy. For instance, a corporation is resident where its central management and control is located. The ITA4 provides that a reference to an estate or trust is to be read as a reference to the liquidator or trustee having ownership or control of the estate or trust property. If the sole or a majority of the liquidators or trustees is resident in Canada and if control over the estate or trust property is exercised there, the estate or trust will most likely be deemed to be resident in Canada.
However, if the sole or a majority of the liquidators or trustees are non-residents, and/or the ones who do reside in Canada do not exercise management or control over the estate or trust property, the estate or trust might be held not to be resident in Canada. In such case, the laws of the country in which the estate or trust is considered to be resident will exercise taxing (and possibly civil law) jurisdiction over its property. This is something that a testator may wish to avoid, especially if any such foreign jurisdiction imposes an accession tax or succession duty on testamentary transmissions, or more onerous taxes on trusts than we have in Canada.
In this connection, in a case that went before the court5, the following facts were established:
- There were three trustees of a family trust, two of whom were residents of Bermuda while the third was a Canadian resident.
- Under the trust deed, the Canadian trustee had sole power to appoint other trustees.
- The Canadian resident trustee played an active role in the administration of the trust. But,
- A majority decision on all matters involving trustee discretion was required.
- All of the trust's assets were located in Bermuda.
The Minister argued that the trust had dual residence because of the fact that the Canadian resident trustee had sole power to appoint other trustees, and that he took an active part in the trust's activities. This argument was totally rejected.
The court did hold, however, that the trust was resident in Bermuda because a majority of the trustees were resident there and the trust document called for a majority decision with respect to all matters in which the trustees exercised a discretionary power.
In many wills, the liquidators and trustees are not the same persons. It is conceivable, therefore, that in any particular case the residence of the liquidators will determine the residence of the estate while the residence of a testamentary trust may be deemed to be elsewhere, depending on the residence of its trustees.
This begs the question of course, of why would it be so bad to have the residence of a trust in particular deemed to be located offshore in a low or tax-free jurisdiction? If the corpus of the trust is increased by an amount equal to the taxes that can be saved, wouldn't that mean that more funds will be available for distribution to the beneficiaries?
The answer to that question is, yes and no. The legislators have thought of that possibility and have dealt with it by enacting special income tax legislation to discourage any planning along those lines.
Although more funds may be made available for distribution to the beneficiaries if the trust is resident in a low tax or tax-free jurisdiction, there are provisions of the ITA that, in effect, make Canadian beneficiaries liable for the taxes that the off-shore trust would have had to pay had it been resident in Canada.
Under the "existing" rules of the ITA, the situation is covered in Section 94 and following. I stress the word "existing", because some amendments have been proposed, the enactment of which will probably occur during this year, 2001.
Section 94, as it now reads, sets out rules that tax the passive income earned by some non-resident trusts ("NRT"s). That Section may apply if a person, resident in Canada, has loaned or transferred property, including by way of a bequest, to a NRT that has one or more Canadian resident beneficiaries.
The Section taxes NRTs that are discretionary trusts differently from those that are non-discretionary. A discretionary trust is defined for this purpose as one under which a person has a discretionary power to determine the amount of income or capital that one or more beneficiaries will receive.
If the NRT is discretionary, paragraph 94(1)(c) first deems the NRT to be resident in Canada for purposes of Part I of the ITA, and then deems its income for tax purposes to be the total of its Canadian source income and its foreign accrual property income, if any, (referred to fondly among tax practitioners as its "FAPI").
For the purpose of Section 94 of the ITA, "FAPI" is defined in Subsection 95(1). Three types of income are usually relevant for purposes of the FAPI rules: Income from property, such as rental income, dividends, etc., income from a business other than an active business, as those words are defined in the ITA, and income from an active business. Basically, the sum of those first two categories of income constitutes FAPI.
Where the NRT is discretionary, Canadian beneficiaries are solidarily, i.e., jointly and severally, liable to pay the Canadian tax on the Canadian source income and the FAPI of the trust. However, the liability can be enforced against a particular beneficiary only to the extent of the distribution that the beneficiary has received from the trust, or as proceeds from the sale of his or her interest in the trust.
If a NRT is not a discretionary trust, paragraph 94(1)(d) of the ITA provides that it is to be treated in much the same manner as a non-resident corporation. Thus, if a Canadian resident beneficiary holds an interest in the NRT with a fair market value ("FMV") equal to 10% or more of the total FMV of all interests in the trust, the NRT is deemed to be a controlled foreign affiliate of the beneficiary. Consequently, the FAPI rules apply to the trust and the beneficiary, requiring the beneficiary to include a portion of the FAPI of the NRT in his own income even if the beneficiary has not received payment of that portion.
On the other hand, beneficiaries who do not have a 10% or greater interest in the trust, may be subject to tax under the offshore investment fund rules in Section 94.1 of the ITA. If Section 94.1 does not apply, such beneficiaries are taxed only if trust income becomes payable to them in the year that it arises.
Under the proposed amendments to Section 94, the new rules will provide that, in general, if a Canadian resident contributes property to a NRT, even as a testamentary gift, the contributor (or his estate), the NRT and certain Canadian beneficiaries of the NRT may all become liable to pay Canadian tax on the worldwide income of the NRT, as opposed to the present tax on only the sum of its Canadian source income and its FAPI6.
In light of the above, I propose to amend my Model so that the first paragraph of the Clause relating to the appointment of liquidators will read as follows:
"a) As sole liquidator of this my Last Will and Testament I hereby name and appoint my said wife, Calpurnia, provided that at the time of my death she is a Canadian resident and remains so for the entire period of her administration. In the event that my said wife shall have predeceased me, or be unable for any reason to act or to continue to act, or should she, during her tenure as Liquidator cease to be a Canadian resident, I hereby name and appoint in her place and stead my brothers, Robert and Roberto, and my friend, Roberta, as joint Liquidators, provided that each of them is then a Canadian resident and remains so for the entire period during which he will be acting as such, it being my intention that, for Income tax purposes, the residence of my Estate shall at all times be deemed to be located in Canada."
The first three lines of paragraph b) of that Clause will also be changed to read:
"b) In the event that any of the joint Liquidators aforenamed shall be unable or unwilling to act or should die, or during his time in office shall cease to be a Canadian resident...".
Similar changes will have to be made with respect to the qualification of trustees if the will provides for the creation of any trusts.
In the case of foreign assets, such as a Florida condo, the testator may wish to consider the making of two separate wills, one being the principal will to deal with Canadian assets and the other a complementary will to deal with the foreign property.
One advantage of using two wills is that the foreign will can be probated in the jurisdiction in which the property is located, with directions as to the disposition of those assets contained in that document. This will not interfere with the administration of the Canadian property under the Canadian will.7
My Model contains a Clause providing for the payment of, among other things, taxes and "all other just debts..." owing by the deceased upon or by reason of his or her death. (Although that Clause also allows the liquidators to make any election or elections pursuant to the ITA and the TA that they may choose to make in the exercise of their discretion, I believe that it should nevertheless be changed to allow, specifically and additionally, a discretion in favour of the liquidators to use all or any part of the testator's unused RRSP room that he or she may have at the time of death.).
Many of our testators will have earned income to report with respect to their terminal year. The testator's liquidators may not necessarily be aware that such income can be reduced for income tax purposes to the extent of the deceased's unused RRSP room; that is, the contribution that the testator would have been entitled to make, had he or she lived, not only with respect to the terminal year, but also any accumulated unused RRSP room carried forward with respect to prior years. Such RRSP contribution can be made either to the testator's own plan or to a spousal RRSP, or part to one and part to the other.
The ability to make this contribution will only be available on behalf of a decedent who is less than 70 years old at the time of death with respect to his or her own RRSP, because the rules of the ITA require an individual to convert his or her RRSP into a RRIF or an annuity by the end of the year in which that individual turns 69. Consequently, after that conversion, the individual no longer has a RRSP into which contributions may be made. However, the liquidators acting on behalf of the decedent can make the contribution to a spousal RRSP, if it is made within 60 days of the testator's death and before the end of the year in which the spouse turns 69.
Since RRSP contributions made by the liquidators will reduce the incidence of income tax payable by the testator's estate on the earned income of the deceased in his or her terminal year, I propose to draw the attention of the liquidators to the existence of this possibility by adding the following as the last paragraph of the Clause of my Model which provides for the payment of debts:
"My Liquidators are hereby specifically authorized, in the exercise of their absolute discretion, to contribute, within 60 days of the date of my death, to any Registered Retirement Savings Plan that I may have at the time of my death, or, within the same delay, to any Registered Retirement Savings Plan that my said husband/ wife may then have or may be permitted to have, or to a combination of the two, such amount of any Registered Retirement Savings Plan contribution room that may be available to me at my death, in whole or in part, as they may deem fit, and any amounts so contributed shall be deemed to be in payment of a just debt for the purposes of this Clause."
The delay of 60 days within which the contribution is to be made is not arbitrary; it is a statutory requirement.8 The reason for this is because, as a rule, RRSP contributions must be made within 60 days of the end of an individual's taxation year, which is normally December 31st. In the case of death, however, the individual's taxation year ends on the date that he or she died, and the application of the requirement therefore remains constant.
3. Presumption In The Event Of Common Disaster.
My Model provides an option which allows the testator to stipulate which of the spouses will be deemed to have predeceased the other in circumstances that make that determination impossible, such as, to choose the most obvious example, in the case of an airplane crash.
The history of this provision lies in the distant past, in an era when we had both a Federal Estate Tax Act and a Provincial Succession Duties Act. Briefly, under the former Estate Tax Act, a tax was levied on the total value of an estate by way of graduated rates; the former Succession Duties Act imposed a duty on the value of the transmissions, also on a graduated rate basis. Therefore, the larger the estate, the higher the taxes and duties.
In the case of simultaneous deaths, there was a "stacking of estates", as it were, in the hands of the last to die, and the taxes and duties payable with respect to the stacked estate were considerably higher, because of the graduated rate system, than the sum of those impositions would have been had one of the spouses survived the other. To avoid this "stacking" effect, a stipulation was added to many wills requiring the spouse of the decedent to survive him or her for some fixed period of time, such as, 60 or 90 days, in order to inherit.
Another factor contributing to the popularity of such stipulations, was that the rules of the old Code, the Civil Code of Lower Canada, that were designed to determine which of the spouses was the first to die in simultaneous death situations, were sex and age based, complicated and cumbersome to apply.
At least two things have occurred in recent years, which, in my opinion, render such survivorship stipulations meaningless.
The first was the repeal of both the Estate Tax Act and the Successions Duty Act. The second was the introduction of the CCQ in 1994, Article 616 of which provides for the following (rebuttable) presumption:
"616. Where persons die and it is impossible to determine which survived the other, they are deemed to have died at the same time if at least one of them is called to the succession of the other.
The succession of each of the decedents then devolves to the persons who would have been called to take it in his place."
In effect, when dealing with the succession of each of the deceased parties in turn, under this rule, we pretend that the other party has predeceased the testator.
The presumption established by Article 616 applies to both testate and intestate successions. However, for the purposes of this paper, my comments are restricted to its effects on testate successions only.
Here's how the presumption might work in practice.
"Father" and "Mother" have two grown children. Father and Mother both perish in an accident and it is impossible to determine which of them was the first to die. Father has bequeathed his vast estate to a testamentary spouse trust to be established in Mother's favour, if she is alive at his death. In the event that Mother has predeceased Father, or upon her subsequent death if she has survived him, Father's will stipulates that the capital portion of his estate, or the remainder of the spouse trust, as the case may be, is to be paid out in equal shares to the two children, in increments, as they each attain the ages specified in his will.
Mother has also left a will, but since her estate was relatively modest, she bequeathed all of her property to Father, if alive at her death, otherwise, outright in equal shares to the two children.
On applying the presumption of Article 616 to that fact pattern, both Father and Mother will be deemed to have died at the same time. Consequently, for the purpose of each of their respective wills, the stipulations regarding the spouse are ignored, since that spouse is deemed not to be then alive, having died, according to the presumption, at the same time as the testator. Accordingly, each child will inherit from both estates simultaneously, each in accordance with the stipulations set out in the two wills.
It should be noted that for life insurance purposes, a different presumption comes into play in the event of simultaneous deaths. Article 2448 CCQ provides that:
"Where the insured and the beneficiary die at the same time or in circumstances which make it impossible to determine which of them died first, the insured is, for the purposes of the insurance, deemed to have survived the beneficiary. Where the insured dies intestate, leaving no heir within the degree of succession, the beneficiary is deemed to have survived the insured. In similar circumstances, the preceding policy holder is deemed to have survived the subrogated policyholder."
I doubt that any different presumption set out in a will would override the provisions of Article 2448 CCQ.
As we will soon see, there are other reasons that further reduce the usefulness of the survivorship stipulation contained in my Model.
I do not intend to continue using that stipulation myself, except in cases where the application of the presumption of Article 616 might provide a different result from that sought by the testator.
4. Particular Legacies.
By definition, a legacy by particular title is one that is neither a universal legacy nor a legacy by general title9. A universal legacy entitles one or more persons to take the entire succession10. A legacy by general title is one that permits one or several persons to take:
- an aliquot share of the succession,
- a dismemberment of the right of ownership of the whole or an aliquot share, that is, a grant of usufruct, use, servitude or emphyteusis, all of which are real rights11, or,
- the ownership or dismemberment of the right of ownership of the whole or an aliquot share of all the immovable or movable property, private property, property in community or acquests, or corporeal or incorporeal property12.
Based on these definitions, it is my view that the provisions of a will that provide for the disposition of particular assets such as, RRSPs and RRIFs, and even rights to property comprising the family patrimony and acquests, may, to the extent that they might be transmissible, represent legacies by particular title since such bequests do not appear to fall within the definitions of universal legacies (unless they constitute the entire estate) or legacies by general title (unless they constitute the whole or an aliquot share of the succession)13. More will be said later about these legacies by particular title.
The distinction between the various kinds of legacies is important for a number of reasons.14
For example, only the persons named in the will as universal legatees or legatees by general title are the "heirs" of the deceased15. The legatee by particular title is not an heir and is not liable for the debts of the testator on the property of the legacy unless the other property of the succession is insufficient to pay the debts, in which case, he or she is liable only up to the value of the property that he or she takes16. The debts of the estate are the responsibility of the heirs17.
I have found nothing in the law, by the way, that would preclude a person from being a legatee under more than one title. If I am right in concluding that a person can be both a legatee by particular title with respect to, say, the deceased's RRSP, as well as a legatee by general title with regard to, say, one third of the residual assets, then, as we have seen, the RRSP will not be liable for the debts of the estate unless its remaining assets are insufficient for the purpose.
According to Article 660 CCQ, representation is a favour granted by law by which a relative is called to a succession, which his ascendant, who is a closer relative of the deceased, would have taken, but is unable to take himself or herself, having died previously or at the same time.
There is no representation with respect to legacies by particular title unless specifically provided for in the will.18
As to the other kinds of legacy, there is representation even if not specifically provided for in the will, provided that the legacy has been made to all the descendants or collaterals of the testator who would have been called to the succession had he or she died intestate, regardless of the size of the portion bequeathed to each.19
The following scenario illustrates how this provision works:
A widow with two children dies leaving her estate to be divided equally among her siblings, purposely excluding her children, without providing for representation in favour of the issue of a predeceased sibling. On her death, her estate becomes divisible among her surviving siblings only. Representation does not operate in this case because the legacy has not been made to "all of the descendents who would have been called to the succession had she died intestate" as stipulated by Article 749 CCQ.
It seems that if a universal legacy or a legacy by general title had been left to her 2 children, representation would take effect by sole operation of law in favour of the issue of a deceased child, since her children, being all of the descendants of the testator would have been called to the succession had she died intestate. The fact that any such legacy may have been willed to the children in unequal proportions is immaterial and will not prevent the provisions of that Article from taking effect.
Therefore, if a testator intends for a legacy by particular title to pass to the heirs of the beneficiary if the latter is no longer alive at the testator's death, the will must so specify. As a matter of safety, I intend to continue to specify what the testator's intentions are regarding representation even in the event that an heir named in the will to receive a universal legacy or a legacy by general title predeceases the testator.
6. The Family Patrimony And Partnership Of Acquests.
This is an area of law that can pose serious planning problems for the will drafter.
We are told that, "marriage entails the establishment of a family patrimony consisting of certain property of the spouses, regardless of which of them holds a right of ownership in that property." 20
That Article is contained in Section III of Chapter IV of the CCQ, entitled "Effects of Marriage", the first Article of which21 states that, "In no case may spouses derogate from the provisions of this chapter, whatever their matrimonial regime."
The family patrimony is therefore one of the "Effects of marriage".
In considering how the family patrimony should be dealt with in the context of the preparation of an estate plan, we must familiarize ourselves with several important aspects of the respective rights of the spouses in the family patrimony.
In this connection, we will look at the following:
- The scope of the rights.
- The application of the rights.
- The nature of the rights.
- The transmissibility of the rights.
- Payment of a debt arising from the determination of a spouse's rights.
- The interplay between a spouse's rights under the family patrimony rules and those arising under the regime of partnership of acquests.
In looking at the scope of the rights covered under the family patrimony provisions, we need to consider it from two aspects: the persons who are subject to the rules, and the property that the rules encompass.
The answer to the question, "What persons are subject to the family patrimony rules?" is to be found in the second paragraph of Article 365 CCQ. Under that paragraph, "marriage", (which, as we recall, is the first word of that part of Article 414 CCQ that was cited above), may be contracted "only between a man and a woman expressing openly their free and enlightened consent."
The second paragraph of Article 365 CCQ stipulates that, "Marriage shall be contracted openly, in the presence of two witnesses, before a competent officiant."
Therefore, persons who are in a common law or same-sex relationship are not subject to the family patrimony rules.
What about persons who were domiciled outside of Quebec at the time of their marriage and, sometime later, became domiciled in Quebec? Do the family patrimony provisions apply to them?
This is still an open question, which the courts have not yet finally resolved. However, in the case of Droit de famille-2210,22 the Superior Court rendered a decision on the subject, which has not been reversed. That was a case involving persons, domiciled in Ontario, who were married in that Province. Prior to their marriage, they entered into a valid marriage contract, in which they stipulated that the laws of Ontario would apply to their marriage. They subsequently established a new domicile in Quebec. The court ruled that the application of the rules of the CCQ regarding the family patrimony, which is an effect of marriage, cannot be set aside by reason of that stipulation in the Ontario marriage contract. The learned Judge concluded, rather, that Article 3089 of Book Ten of the CCQ, "Private International Law", is to be applied to such cases. That Article provides that, "the effects of marriage, particularly those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses."
I believe that the reasoning behind that decision will be followed in other cases.
One of the few exceptions to the family patrimony rules is one which affects spouses who were married prior to July 1st, 1989, and who signed a notarial agreement whereby they opted out of the family patrimony provisions of the CCQ23.
It is important, therefore, to determine the date of each testator's marriage. If he or she married before July 1st, 1989, then we must determine whether or not this election was made. If so, the details of the election should be set out in the will in much the same fashion as the details regarding any marriage contract would be. If no such election was made, it might be prudent to include a statement to that effect in the will.
I intend to revise my Model by adding a paragraph to provide for such a positive or negative declaration. The new paragraph will, of course, be deleted in its entirety in the case of a testator who married after July 1st, 1989.
Having determined who the persons are who are subject to the family patrimony rules, we'll now look at what property is included in the family patrimony, and what rights those persons have in or to that property.
Article 415 CCQ sets out a list of the property that is included in the family patrimony; that list can be summarized as follows:
- The residences of the family or the rights which confer use of them.
- The movable property with which they are furnished or decorated and which serves for the use of the household.
- The motor vehicles used for family travel.
- The benefits accrued during the marriage under a retirement plan.
Article 415 CCQ goes on to say that, for the purposes of the rules on family patrimony, a retirement plan includes a retirement savings plan as well as any other retirement-savings instrument, including an annuity contract, into which sums from any of which plans have been transferred. This definition appears to cover both RRSPs and RRIFs.
Article 415 CCQ corresponds to Article 462.2 of the CCLC, and is very similar to it in its wording. The jurisprudence and doctrine relating to Article 462.2 would therefore appear to be applicable to situations arising under Article 415 CCQ.
As the wording of Article 415 makes clear, all residences, regardless of their number, that are used by the family are included in the family patrimony
Whether a residence being in the family patrimony was acquired during or prior to the marriage is irrelevant. Article 418 CCQ allows for adjustments to be made to the net value of any asset of the family patrimony owned by each spouse at the time of the marriage. Although each such asset will still form part of the family patrimony, its net value may turn out to be "nil" upon the application of the adjustment provisions of the second paragraph of that Article.
It appears that the Courts will apply the family patrimony rules quite liberally, so as to include within their scope property that a client might feel should be excluded.
For instance, in the case of Droit de la famille-991,24 it was held that a fully equipped boat used by the family for recreational purposes on weekends was a secondary residence for the purpose of Article 462.2 of the CCLC, to be included as part of the family patrimony. The same conclusion regarding a pleasure boat in dispute was reached in the case of Droit de la famille-1614.25
The provision regarding motor vehicles used for family travel has also given rise to some interesting interpretations.
It seems that all terrestrial vehicles, as distinct from aircraft, are included in the notion of "motor vehicles" if they are used for family travel.26
In the case of Droit de la famille-1412,27 it was held that, in order for a vehicle to be included in the family patrimony, it must have been used for the family's necessary requirements, and since the all-terrain vehicle at issue was used primarily for recreation rather than for family travel, it was to be excluded from the family patrimony.
As to the movable property garnishing the family residences, they must "serve for the use of the household"28 in order for them to be included in the family patrimony.
The movables in a residence used by one of the spouses exclusively for professional purposes were therefore excluded from the family patrimony.29
In Droit de la famille-2498,30 it was decided that a wine collection kept in the cellar of a family residence was to be excluded from the family patrimony.
However, paintings acquired as an investment that were hung in the family residence were held to be part of the family patrimony.31