All About Estates

Tag: litigation

Total 11 Posts

Chapter Two in the Family Farm Saga

The case of John the Farmer (which I had previously blogged about) is now under appeal. John  is seeking to overturn the ruling that he had to vacate the family farm so it could be sold on the open market. A judge rejected John’s request to stay the lower court’s…

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Determining the CAPITAL DIVIDEND ACCOUNT BALANCE: no longer a shot in the dark?

The capital dividend account (“CDA”) is a tax free surplus account within a private corporation which gives shareholders designated capital dividends, tax-free. The CDA typically contains the non-taxable portion of the company’s capital gains net of capital losses, capital gains received by other companies, proceeds of life insurance on death…

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BEWARE OF HIDDEN TAX CONSEQUENCES

A recent Alberta Court of Queen’s Bench decision in Morrison v. Morrison 2015 CarswellAlta 2249 (Alta.Q.B.) reminds advisors and clients alike of (i) the need to consider the income tax consequences of not only their overall estate plan, but components within it, and (ii) the importance of stating intention expressly and directly, particularly when one child may be benefitted more so than other children. The facts in Morrison were not unusual nor is the fact that, despite the relatively modest dollar amounts involved, the matter went to trial – an unfortunate result for all concerned.

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Family Holiday and Family Strife – Kissing Cousins?

Justin de Vries shares his Yuletide musings on family conflict and the inevitability of litigation.

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Power of Attorney Terminated Despite No Misconduct

When a dispute arises inside a blended family over who will make substitute decisions for in incapable person, the court may have to step in. In Corewyn v McCulloch, 2015 ONSC 6039, Justice Sweeny appointed the incapable person’s daughter as her guardian, despite the existence of a valid power of…

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The Costs of Upholding A Testator’s Intention

When opposing a dependant support claim on the grounds that you are upholding the intentions of a testator, as this recent B.C. case indicates, think carefully about the possible cost consequences of so doing before proceeding to trial.

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What Do Dependants’ Support, Gratuitous Promises and Kiwis Have in Common?

New Zealand may be thanked for our dependants’ support legislation, says Professor David Freedman. What kind of support claims will bedevil our courts in the future?

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To Undue, or Not too Undue? What Does Undue Influence Look Like?

Absent threats and promises, can “working on” an elderly testator over a period of time constitute undue influence? A recent decision of the B.C. Court of Appeal upheld a trial judge’s decision finding that this kind of persuasion was enough to consitute undue influence.

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