In Ontario, a standard guardianship clause in a will where there are minor children typically appoints one or more guardians, may include alternate ones, and will usually refer to the need to obtain a permanent appointment by the court pursuant to the Children's Law Reform Act (please refer to my previous blog in this regard). As important as the appointment of guardians may be, it provides no guidance to the appointed guardians for the minor children's care and upbringing. In order to address this, parents should consider a "letter of wishes" to the guardians of their children.
In Canada, succession rights are often discussed in the framework of testamentary freedom - see for example our previous blog regarding testamentary freedom which discusses disinheriting a beneficiary such as a child who might expect to inherit. But in many parts of the world, a person not only cannot disinherit certain family members, it would not be accepted by society at large in such places that a person should be able to do so.These countries have "forced heirship" laws or mandatory succession rights, which direct how a person's estate must be distributed on death, including who will inherit and what portions of the estate each beneficiary should receive. Beneficiaries included are typically close family members, but some jurisdictions include extended family members. These laws are found in many if not most civil law jurisdictions such as mainland Europe as well as Muslim countries.
Life spans are increasing. Consider that in Canada over the last decade alone, life expectancy for those who reach 65 has climbed by two years, and men on average who are 65 today can expect to live to 84 and women to 87, while half of Canadians age 20 today will live to age 90 and 10% to age 100. Perhaps it is nature's balancing act that there is a longer aging period but at the same time there also seems to be a longer maturation period for our children which impacts our estate planning.One of the perplexing questions faced by parents in their estate planning is coming to grips with the question of deciding appropriate ages for their children to inherit. From my own perspective as an estate planning lawyer for over three decades, I have seen a significant shift in that time span to later ages.
There are important decisions that need to be made when parents with young families prepare their wills, including who will act as guardian of their minor children should both parents die. Not only do parents want to ensure they are providing for their children financially, they also want to be confident their children will be cared for and raised by appropriate individuals. What are the specific issues that arise if the proposed guardian does not live in the same jurisdiction? By way of background, in Ontario, the Children's Law Reform Act deals with testamentary custody and guardianship of minor children (individuals under 18 years of age) and parents have the authority to appoint a "guardian" for custody of their minor children under their individual wills. However, this appointment is only valid for 90 days from the date of death of the deceased parent. Please see our previous blog for further details on the appointment process.
Many people who live or have assets in Ontario are concerned about the amount of Estate Administration Tax (probate fees or "EAT") that will be payable on their death given the high rate of approximately 1.5% of the value of estate assets. One common estate planning technique for minimizing EAT is the use of multiple wills (for a discussion of techniques to minimize EAT please see our advisory "Planning to Minimize Estate Taxes"). While multiple wills have long been accepted by the Ontario courts and are specifically provided for in the Ontario Rules of Civil Procedure, the recent Ontario decision in Re Milne Estate held wills that contain "basket clauses", which are commonly used in multiple will planning, to be invalid. Fortunately, the decision was recently overturned on appeal, and now that the appeal period has expired for that decision, the issue appears to have been settled.
When it comes to spousal property division on death within the Canadian context, many different laws govern. Under constitutional law, property rights fall within provincial and territorial jurisdiction, and with ten provinces and three territories that means thirteen different jurisdictions, each with their own unique laws to govern what happens on death.What is interesting but also perplexing is how much these laws differ from each other, and as a result, how moving to a different Canadian jurisdiction can significantly impact rights on death arising out of marriage or a common law relationship. It is an issue that is not on the radar when a decision is made to move to a different Canadian jurisdiction, whether because of a new job, for retirement, or to be closer to family.
The law concerning assisted reproductive technology ("ART") occupies a unique space where the autonomy of the human body intersects with property rights, which historically at common law did not extend to the human body or body parts. The world's first in-vitro baby was born in 1978, but it was only much later that the law began catching up with ART. The first legislation in Canada that governs ART - the federal Assisted Human Reproduction Act (the "AHRA") - was introduced in 2004 which launched a code on the uses and prohibitions regarding human reproductive tissue. The AHRA mandates that reproductive tissue shall only be used with the donor's free and informed consent that is provided in writing, but the AHRA has also opened the approach toward treating reproductive tissue as property, employing terms such as "use" and "creation" and the prohibited actions of "purchase" and "sale".
In a prior blog on millennials and estate planning, I discussed its importance for the younger generation and the unintended consequences that can result from failing to have proper planning in place. In today's blog, I hope to take that notion a step further by discussing family law implications that should be considered by millennials as they progress through relationships, living situations, and even marriage.Before marrying or cohabitating with a spouse or partner, it is important to assess the legal implications of this important step. The first consideration is to understand the difference in legal rights that arise between being in a common law relationship and being legally married. With 53 per cent of Canadian adults feeling marriage is unnecessary (including millennials who are moving further away from the marriage trajectory), a common misconception is that a common law partner has the same rights and legal standing as a married spouse.
We live in a world in which personal privacy is under siege, or perhaps simply not valued as much by many as it was by prior generations. As we reach the end of 2018, this year has seen a number of scandals involving significant data breaches and cyber hacking involving corporate behemoths as well as foreign governments which have shown how personal information is being surreptitiously obtained and illegally traded for corporate gain or used for political intelligence and influence. Technology, the internet and social media have developed far faster than the ability to understand them and their full implications and effects, and certainly for our lawmakers to regulate and legislate in respect of them.At the same time, governments worldwide are keen to ensure greater transparency they claim is necessary in order to combat money laundering, counter financing of terrorist activity and fight tax evasion. In the European Union, on May 30, 2018 the Fifth Anti-Money Laundering Directive was adopted, and requires member states to bring it into domestic law by certain dates in 2020.The key amendments include more access to beneficial ownership information so that member states must now not only make available information on the beneficial owners of companies to those with "legitimate interests" but now extends this to trusts, and now requires that information on beneficial ownership of companies should be made available to the public.
While it is less common these days for employment benefits to include a pension, many individuals still do have either a pension (not including the Canada Pension Plan, which is subject to its own rules and which is not the subject of this blog) or a locked-in retirement account (LIRA) which was created from former pension funds. While these funds, particularly LIRAs, tend to be thought of as if they are RRSPs or RRIFs, it is important to remember that the rights associated with them, including the right to designate a beneficiary, are not always the same.