One of the most important aspects of estate planning for families is ensuring that everyone who is considered to be part of the family is able to share in the family wealth after death. While each holder of family wealth has different views on how and when this should occur, no one ever wishes to accidentally eliminate an intended heir. Unfortunately, this can happen all too easily when standard provisions routinely included in wills and trusts are not fully considered in light of each person's unique family circumstances.Here is one example of how such an unintended disinheritance might arise. A person makes a will which provides for a cash amount for each grandchild. This person has a child who is a parent to his or her spouse's child from a previous marriage. This child never legally adopted his or her spouse's child, although this "step-grandchild" is considered part of the family.
It is timely to consider the topic of medical assistance in dying. Since June 17, 2016, three years ago last week, Canadian law has recognized as a fundamental human right to be protected by our Charter of Rights and Freedoms the right to have assisted dying. On that date, Parliament amended the Criminal Code to legalize medical assistance in dying ("MAID").Canada joined a small but growing number of jurisdictions which allow either assisted suicide (where a person helps another to end their life but the patient takes their own life), such as prescribing life-ending medication, or voluntary euthanasia where a practitioner administers medication that causes a patient's death. Assisted dying is also allowed in Belgium, Colombia, Luxembourg, The Netherlands, Germany, Japan, Switzerland, several U.S. states and the State of Victoria, Australia, but only The Netherlands, Belgium, Columbia, Luxembourg and Canada and just last week, the State of Victoria have legalized voluntary euthanasia.
Much has been written in recent years about the role of the "trusted advisor". A trusted advisor plays a key role in achieving client goals in their best interests and is worth their weight in gold. To do so, a trusted advisor needs to be able to provide clients with sound advice based on experience but also on the ethical dimensions of their decisions.
Now that the flurry of another tax season has come and gone, and we can put tax return preparation to the side until next year, its seems timely to consider in a dispassionate way how Canadian tax rates stack up against other countries, in particular the U.S.. Do we pay too much tax compared to other countries? A recent report by The Fraser Institute released on March 14, 2019 sets out the facts based on 2017 rates. 
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.
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.