Canada: Estate Planning And Wills In Quebec For The New Millennium - Part 2

What is the nature of a spouse's rights in the family patrimony?

To answer that question, it is important for us to fully grasp the underlying notion that the family patrimony rules are not to be construed in any way as conferring on the spouses a right of ownership in any of the property making up the family patrimony.

Each of the spouses, therefore, remains the absolute owner of the property of the family patrimony with respect to which he or she has title.

In the case of Droit de la famille-977³², the Court of Appeal stated in no uncertain terms that the rights of the spouses in the family patrimony are not real rights conferring a right of ownership, but constitute instead a general and personal "droit de créance".

The nascent debt that the family patrimony rules create in favour of each of the spouses becomes crystallized on the death of one of them.

This is another reason why a survivorship requirement in a will in order to qualify a spouse to inherit is useless. The rights accruing to the spouses with regard to the family patrimony arise by the sole operation of law on the death of one of them, not 30, 60 or 90 days thereafter.

From the moment of death, both the survivor and the estate become entitled to an amount equal, in effect, to one-half of the net FMV of any property of the family patrimony owned by the other, calculated as at the date of death. Expressed in another way, each of the survivor and the estate (subject, in the latter case, to the latest jurisprudence regarding the rights of the heirs as creditors of the survivor, to be discussed later) has a right to claim an amount equal to one-half of the total FMV of all of the assets of the family patrimony, regardless of who has title to them. That calculation is made in accordance with the provisions of Articles 417 and 418 of the CCQ.

Thus, for example, if the net FMV of certain assets of the family patrimony owned by the surviving spouse is equal to, say, 100, and the FMV of the assets owned by the estate is 200, the total FMV of the family patrimony is 300, and each of the surviving spouse and the estate is entitled to receive one-half of that total, or 150. If the net FMV of the property owned by the estate exceeds 150, the excess amount may become a debt due by it to the survivor.

This crystallization of debts can produce some very interesting results if the will is not carefully drafted. For instance:

Consider a situation in which a husband has a $2,000,000 estate, made up in part of assets of the family patrimony having a net FMV of $800,000. He wishes to leave one-half of the estate to his wife, to whom he was married after 1989 under the regime of separate as to property, and the remaining half to their children. The testator's intention is for his wife to receive $1,000,000 and for the children to share in the remaining $1,000,000. For the sake of this example, the wife has no assets of the family patrimony.

In this situation, since under the family patrimony rules, the testator's wife will be entitled, off the top, to one-half of the FMV of the family patrimony property owned by the deceased, or $400,000, instead of there being $2,000,000 in the estate for distribution among the heirs, there will only be $1,600,000. If that remaining amount is then divided on the basis of one-half to the wife and the remainder to the children, in accordance with the terms of the will, then the wife will have received $1,200,000 instead of $1,000,000, and the children $800,000 instead of the $1,000,000 that the testator intended them to have.

Let's call that situation "Problem #1".

Now let's look at the genesis of a second problem.

Where the spouses are married under the regime of partnership of acquests, there exists the potential for a spouse to "triple dip" into the assets of the other spouse upon the latter's death.

Before explaining what I mean by a "triple dip", we should refresh our memories a bit about the nature of the spouses' rights under the marital regime of partnership of acquests.

With regard to this topic, Me Pierre Ciotolo, in his excellent study of this and related topics,³³ sets out ³⁴ the essential distinctions between the rights of the spouses under the family patrimony rules and those that apply by virtue of the partnership of acquests rules to which they are subject.

The main differences for our purposes are these.

As we have seen, the family patrimony rules give each spouse a right to claim an amount equal to one-half of the total net FMV of all the assets making up the family patrimony, regardless of which of them has title to the assets, without giving them any real rights on or in that property. Also, the assets comprising the family patrimony are relatively few, being restricted to residences, their garnishments, motor vehicles and certain retirement plans.

The regime of partnership of acquests, on the other hand, confers a right of co-ownership on the spouses at the time of dissolution of the marriage on all property that the law considers to be the acquests of each of them.³⁵

There are two types of property that are dealt with under this regime: acquests and private property. Briefly, any and all property that is not deemed by law to be private property or that cannot be proven to be so, is, by definition, an acquest.³⁶

In the process of partitioning the property of the partnership of acquests, the rights of the spouses under the family patrimony rules are determined first, followed by a determination of their rights under their marital regime.

This is where the potential for "triple dipping" arises.

Consider a situation in which the spouses were married after 1989 under the regime of partnership of acquests. One spouse dies, bequeathing half of the estate to the surviving spouse and the remainder to their children. Assume, for the purposes of this illustration, that the surviving spouse has no assets to speak of, (which is not necessarily so unusual among the women of society's older generations).

1. The first dip: the surviving spouse has a claim against the estate under the family patrimony rules to one half of the net FMV of the property of the patrimony owned by the deceased.
2. The second dip: the surviving spouse has real rights in the assets of the estate that are deemed to be acquests of the deceased.
3. The third dip: the surviving spouse has a right to one half of the remainder of the estate of the deceased under the terms of the will.

That's "Problem #2", unless, of course, the testator desires this result.

Before attempting a solution to these problems, let's prepare some groundwork.

As we will recall, Article 423 CCQ stipulates, in part, that, although the spouses may not by way of their marriage contract or otherwise, renounce their rights in the family patrimony, "one spouse may, however, from the death of the other spouse, renounce such rights, in whole or in part".

Curiously, there is no mechanism among any of the family patrimony rules whereby the liquidators of the estate of the deceased or the decedent's heirs can renounce the testator's rights in the property of the family patrimony owned by the surviving spouse.

The partnership of acquests rules in this connection are interestingly different.

Article 473 CCQ states that:

"When the regime (i.e., of partnership of acquests) is dissolved by death and the surviving spouse has accepted the partition of the acquests of the deceased spouse, the heirs of the deceased spouse may accept or renounce the partition of the surviving spouse's acquests...".

Notice the condition precedent to the application of the option contained in Article 473: it only operates if the surviving spouse has accepted the partition of the acquests of the deceased spouse.

Neither that condition nor the reference to the heirs of the deceased are referred to in Article 423 CCQ, in relation to a permitted renunciation by the surviving spouse of rights in the family patrimony. That Article refers only to the right of a surviving spouse to renounce those rights.

Did the legislators intend the heirs to have this option in the one case and not in the other?

In assessing the impact of this failure to provide an option in favour of the heirs in the case of family patrimony rights while permitting it in the case of acquests, we are faced with, as I see it, three possibilities:

1. The legislators intended for the heirs to have more rights with respect to the family patrimony assets than is accorded to them with regard to acquests. Had this been the case, however, the legislators would assuredly have provided for that in the law.
2. The legislators intended for the heirs to have the same rights as are accorded to them in connection with a division of the acquests. This possibility can also, in my opinion, be discarded, since if that had been their intention, all that the legislators would have had to do was to either specifically legislate the necessary wording in Article 469 CCQ, or include in that Article a reference to the one relating to partnership of acquests, that is, to Article 473 CCQ.

That those two Articles are otherwise parallel is particularly apparent upon reading the final paragraph of each, which, using very similar wording in both cases, provides that the renunciation referred to in each of them must be by notarial act en minute, and be registered within one year of the date of partition, in the case of Article 423 CCQ, or the date of death, in the case of Article 469 CCQ. This seems to leave only one other possibility:

3. The legislators did not intend the heirs to have any option whatsoever regarding the acceptance or renunciation of the family patrimony.

For my part, I accept that last conclusion as being the only logical one that can be reached. It is consistent with the jurisprudence to date upholding the principle of the non-transmissibility of a spouse's right in the family patrimony assets that we will look at later, and with the fact mentioned earlier that, unlike the rules relating to the division of rights in the acquests, there is no mechanism among any of the family patrimony rules allowing for the heirs of the deceased to renounce the latter's rights in family patrimony assets owned by the surviving spouse .

There is one possible solution to both Problem #1 and Problem #2.

As for Problem #1, a provision could be contained in a will to the effect that in order for a surviving spouse to be allowed to inherit under the will, that spouse must, upon the death of the testator, renounce to his or her rights in the value of the property of the family patrimony owned by the deceased. However, since this proposed solution can also be made to avail with respect to property that is subject to the regime of partnership of acquests, the provision should therefore be worded so as to make it applicable to both the survivor's interest in the value of the property of the family patrimony and the proprietary interest in the property of the partnership of acquests.

I therefore intend to add a paragraph to my Model to this effect:

As the result of a renunciation made in accordance with such a provision, the entire value of the family patrimony and title to all of the property of the partnership of acquests owned by the deceased will remain in the estate to be distributed in accordance with the terms of the will.

But what about the rights of the heirs of a deceased spouse to share in, firstly, the acquests and secondly, in the value of the assets of the family patrimony owned by the surviving consort?

As to the first question, we recall that when the regime of partnership of acquests is dissolved by the death of one of the consorts, the deceased's heirs may accept or renounce to the deceased's right to ask for a partition of the acquests held in the name of the survivor. However, as we also will recall, the heirs may only exercise that option if the survivor asks for a partition of the acquests owned by the deceased. Although the option in favour of the heirs is contingent on the survivor first requesting a partition, the testator may nevertheless bequeath the right to that option to whoever he or she wishes.³⁶

With regard to the second question, Article 416 CCQ provides that the nascent debt created by the family patrimony rules in favour of each of the spouses becomes crystallized upon the death of one of them. The operative words of that Article are: "In the event of...the dissolution...of a marriage, the value of the family patrimony of the spouses, after deducting the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it, is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be...".

Notwithstanding what appears to be pretty straightforward language, some dispute has arisen in connection with this provision revolving around the following question: "If, as a result of a partition, the heirs of the deceased turn out to be creditors of the surviving spouse, can they enforce payment of that debt?".

Take the following illustration as a case on point:

One of the spouses dies. At the time of death, the deceased had family patrimony assets having a net FMV of $100,000 and the surviving spouse had $500,000 worth of such assets. The total net FMV of the family patrimony is therefore $600,000. The surviving spouse is entitled to 1/2 of that total value, or $300,000. But the survivor has in hand $200,000 more than he or she is entitled to. Can the heirs of the deceased force the survivor to honour that debt? That is, are the rights of the deceased spouse to share in the value of the family patrimony transmissible to his or her heirs?

In the case of Florence Fine et al., Petitioners, vs Abe Bordo, Respondent, and Jeffrey A. Talpis, mis-en-cause,³⁷ the court held that the right to a partition of the family patrimony belongs only to the surviving spouse having a claim against the estate. Therefore, no claim in recovery would lie against a surviving consort who becomes a debtor to the estate upon the partition of the family patrimony.

On the other hand, in the earlier case of Hopkinson vs Royal Trust³⁸, the court held that this personal right is transmissible and that the heirs have the seisin of that right from the moment of the death of the deceased.

Similarly, some commentators on the CCQ support the theory of the transmissibility of the right³⁹ while others are opposed⁴⁰.

Those who argue against the transmissibility of family patrimony rights take the position that those rights are personal to the spouses and are based on provisions of law that were enacted to preserve the economic interests of the spouses and not those of their heirs or creditors. They could argue further that, if transmissibility is permitted, a deceased could bequeath his or her interest in the family patrimony assets held by the survivor to his or her girlfriend or boyfriend, which would be contrary to public policy. As pointed out earlier, a still further argument could be made regarding the intention of the legislators in allowing a restricted right to the heirs of a deceased spouse to accept or renounce to the acquests of the survivor, without providing for a similar option with respect to the family patrimony. This omission by the legislators, which must be deemed to be intentional, is tantamount, in my opinion, to saying that since those rights are not transmissible, there is no need to make any reference to the heirs of the deceased in the Articles of the CCQ relating to the division of the family patrimony..

However, because the question of the transmissibility of family patrimony interests remains unsettled, I intend, for the sake of greater certainty, to modify the existing Clause of my Model dealing with Legacies by Particular Title, to read as follows:

Of course, the references to the property rights in the partnership of acquests will all be deleted or modified, as circumstances dictate, in cases where the parties are subject to a different marital regime.

That same Clause will also be amended (see below, section 7. RRSP AND RRIF PROBLEMS) so as to remove any reference to a survivorship requirement, for the reasons that were already discussed.

Once we have established that the deceased is the debtor to the surviving spouse with respect to a claim arising as a result of the division of the family patrimony, in what manner is that debt to be paid?

Article 419 CCQ establishes three methods of payment:

1. In cash; or,
2. By giving in payment; or,
3. If partition is effected by giving in payment, the spouses may agree to a transfer of ownership of other property than that composing the family patrimony.

Article 420 CCQ provides that, at the time of partition, the court may award certain property to one of the spouses and also, where it is deemed necessary to avoid damage, order the debtor to perform his, her or its obligation by way of installments over a period of not more than ten years. Further, under that Article, the court may also order any other measure that it considers appropriate to ensure that the judgment is properly executed, and, in particular, order that security be granted to one of the parties to guarantee performance of the obligations of the debtor.

It seems clear from that Article that it is the debtor who exercises the choice between paying the debt in cash or by dation-en-paiement. The creditor-spouse of the estate only becomes involved in the decision making process if the debtor wishes to pay the debt by the giving in payment of property other than in property making up the family patrimony.

The paragraph of the Clause of my Model dealing with the making of a legacy by particular title to the spouse of RRSPs and RRIFs, after its amendment as indicated above, will stipulate that:

That paragraph uses words and phrases like, "designate", "annuitant" and "refund of premiums". What do those words actually mean?

I always thought that an "annuitant" was the person named as the beneficiary under an annuity contract, and that a "premium" was something paid to buy an annuity contract or an insurance policy.

Those interpretations are generally correct. But the first thing that we must understand is that the definitions of words that we find in the ITA are there solely for the purposes of the ITA, and their meanings may differ from the ones that we are accustomed to.

The meanings of the words cited above are defined for the purposes of the ITA, and as they apply to RRSPs and RRIFs, they are explained below. But first we should try to get a handle on the "bigger picture", that is, the basic structures of, and the interplay between, RRSPs and RRIFs.

It might help us to better understand the workings of these plans if we look at them from this perspective: try to visualize a RRSP as being a savings account into which funds are deposited for the purpose of ultimately purchasing a retirement plan. Thus, the RRSP is not, in and of itself, a retirement plan, but the funds that are accumulating in the RRSP will eventually be the "premium" that will be paid to purchase such a plan.

This is why, if a RRSP is collapsed, in whole or in part, before a retirement plan has been purchased with its funds, the money paid out under the RRSP may, in certain circumstances, be considered to be a "refund of premiums".

For the purposes of the ITA, RRSPs are divided into two groups, namely, those that have matured (referred to in the ITA as "matured" plans) and those that have not.

A RRSP is said to have matured on the date fixed under the Plan for the commencement of any income payment of which is provided for by the Plan, or, the year following the year in which the owner of the Plan turns age 69.⁴¹

A "retirement savings plan" is a contract under which, in consideration of payment by the individual or the individual's spouse of any periodic or other amount as consideration under the contract, a retirement commencing at maturity is to be provided for the individual.⁴²

A registered retirement savings plan (RRSP) is a retirement savings plan that has been accepted by the federal and provincial governments for purposes of the ITA as complying with the provisions of Section 146 of the ITA.⁴³

If, by the end of the year in which an individual turns age 69, no annuity has been purchased and no RRIF is acquired by the individual, he or she will be deemed to have received a payment in an amount equal to the FMV of his or her assets in the Plan, all of which will subject to tax as income. It's rare, however, for this to happen.

Payments under a RRIF or annuity acquired with the funds of the RRSP at the end of the year in which the individual turned 69 must commence in the following year.

Because of the fact that, in the case of a RRSP that has not matured, contributions are made into the Plan by the individual who started it, or by the individual's spouse, while under a matured Plan payments are made to the individual out of the Plan, the meaning of the word "annuitant" is not the same in both instances.

Subsection 146(1) of the ITA provides that, in the case of a RRSP that has not matured and that terminates as a consequence of the death of the individual who owned the Plan, that individual is the only "annuitant", and payment of the funds in the Plan will be made to the individual's estate. As might be expected, this will produce taxable income in the hands of the estate. However, if the individual's spouse is designated as the person who is to receive payment of that amount, there is a mechanism in the ITA that allows for those funds to be paid into the surviving spouse's RRSP or RRIF and to be treated as a deduction by the estate.

Where the individual who is designated as the person who is to receive payment of the funds of the RRSP of the deceased is a "qualified" beneficiary, that is, the deceased's spouse or financially dependent child or grandchild, that payment is referred to as a "refund of premiums'. The payment of funds out of a deceased's unmatured RRSP qualifies as a "refund of premiums" only if it is paid to a "qualified" beneficiary.

On the other hand, under a matured Plan, upon the death of the RRSP annuitant, his or her spouse, rather than the estate, will become the annuitant under the matured Plan, if designated as such by the testator, and will continue to receive the annuity payments to which the deceased was entitled to in accordance with the terms of the annuity agreement or the RRIF.

There may be an issue in connection with the "designation" of the person who is to receive the refund of premiums with respect to an unmatured plan or to continue to receive retirement payments under a matured Plan.

With respect to both of those amounts, the Canada Customs and Revenue Agency has stated that⁴⁴:

The reason for this may be that, prior to its maturity, the RRSP is not considered to be an annuity contract.⁴⁵ Consequently, the designation of a person who is to receive the refund of premiums in the event of the annuitant's death before maturity of the RRSP may constitute a gift mortis causa.

To refresh our memories, a gift mortis causa is one whereby the divesting of the donor remains conditional on his death,⁴⁶ and is null unless it is made by marriage contract or unless it may be upheld as a legacy.⁴⁷

While I agree with that caveat in its application to a RRSP, I do not agree with it in connection with a RRIF.

In my opinion, a RRIF is, by definition under the CCQ, an annuity contract, and is not subject to the rules of the CCQ regarding gifts.

The first paragraph of Article 2267 CCQ provides that:

However, notwithstanding my own opinion regarding the nature of a RRIF as expressed above, I do not intend to change the provisions of my Model that designate the spouse as being the person who is to continue receiving the payments under the annuity contract or RRIF.

For more information on these and other matters pertaining to RRSPs, RRIFs and the death of an annuitant, please refer to Canada Customs and Revenue Agency Interpretation Bulletin IT-500R of December 18^th 1996.

As a final note on this subject, the ITA does not permit an individual to bequeath a refund of premiums under an unmatured RRSP or the right to continue to receive payments under an annuity contract or a RRIF to a trust, not even to a testamentary trust established as a spouse trust.

I hope that this paper has been of some interest to you, and that the comments that have been made will assist us all in continuing to render the highest quality of service to our clients in this area of practice.

With sincere thanks to Me Mel Schiff and Me Sandra Tabori for assisting me in putting this paper together.

1 S.Q. 1991, ch. 64

2 Revised Statutes of Canada 1985, c.1 (5^th supplement)

31977 Revised Statutes of Quebec, Chapter I-3

4 Subsec. 104(1)

5 Thibodeau Family Trust v. The Queen, (F.C.T.D.) 78 DTC 6376

6 See Canada Customs and Revenue Agency Interpretation Bulletin IT-447, "residence of a trust or estate", May 30^th, 1980, for more information.

7 See O'Brien's Encyclopedia of Forms, Eleventh Edition, Division V, Wills and Trusts, Form 3:4, Canada Law Book Inc.

8 Subsections 146(5) and 146(5.1) ITA.

9 Article 734 CCQ.

10 Article 732 CCQ.

11 Article 1119 CCQ

12 Article 733 CCQ.

13 Droit Civil Quebecois, Les Publications Dacfo Inc. (hereinafter "Dacfo"), paragraphs 732 100 et seq.

14 Dacfo, paragraph 731 555.

15 Article 619 CCQ.

16 Article 739 CCQ.

17 Articles 823 et seq. CCQ.

18 Article 749, 2nd paragraph, CCQ.

19 Article 749, 1^st paragraph, CCQ.

20 Article 414 CCQ.

21 Article 391 CCQ.

22 1995 R.J.Q. 1513 (S.C.).

23 S.Q. 1989, c. 55, Article 42.

24 (1991) R.J.Q. 1358 (C.S.).

25 (1992) R.D.F. 337 (S.C.).

26 Dacfo, paragraph 415 570.

27 (1991) R.J.Q. 1911 (S.C.).

28 Article 415, 1^st paragraph, CCQ.

29 Dacfo, paragraph 415 565.

30(1996) R.J.Q. 2100 (A.C.).

31 Droit de la Famille-1636, (1994) R.J.Q. 9, reversing the lower court.

32 (1991) R.J.Q. 904 (A.C.).

33 Cours de Perfectionnement du Notariat, (1989) 2 C.P. du N.

34 (1989) 2 C.P. du N., paragraph 59

35 Article 467, 2^nd paragraph, CCQ.

36 Article 459 CCQ.

37 Dacfo, paragraph 473 555.

38 (1998) R.J.Q. 1823 (S.C.).

39 96 DCQI 140, C.S.

40 See for e.g. Pierre Ciotola, "Le Patrimoine Familial, perspectives doctrinales et jurisprudentielle", Repertoire de Droit-Nouvelle serie, Chambres des Notaires du Quebec, Doctrine, Famille, nos. 16-17 (Aout 1996, version electronique.

41 See for e.g. Jacques Beaulne, "Le droit au Patrimoine Familial et le droit a la succession: droits irreconciliables?", (1989) 20 R.G.D. 669.

42 Subsection 146(1) ITA.

43 Idem.

44 Idem.

45 2000 T4RSP and T4RIF Guide, Chapter 4- Death of an Annuitant under an RRSP or RRIF, pp. 3 and 11.

46 Banque de Nouvelle-Ecosse c. Guy Thibault et al., R.E.J.B. 1999-15947, judgment rendered 27 September, 1999.

47Article 1808 CCQ.

48 Article 1819 CCQ.