In a previous blog, "The Movement to Transparency and the Erosion of Privacy" we wrote about the global move to greater transparency by government and taxing authorities which they claim is necessary to combat money laundering and tax evasion.As part of that agenda which the government asserts is necessary to ensure the effectiveness and integrity of the Canadian tax system, new income tax rules have been introduced which require trusts (with limited exceptions) to provide additional information. As well, certain trusts which may have had no reporting and disclosure obligations because they had no income will now be required to file a trust income tax and information return.
For those of us who live and work in a common law world, it is hard to imagine that we are by far the minority. Most of the world is governed by a civil law regime, customary law or religious law. Continental Europe, Russia, China, Japan, South America, Mexico and some of Africa are governed by civil law. The common law tradition is peculiarly English in origin, and most of its former colonies follow it, including in the U.S. (except Louisiana), Canada (except Quebec), Australia, New Zealand and India.
One of the benefits that a trust and estate lawyer like myself enjoys is that we deal with people of every background, age and personality type and often in very profound ways. In short, we encounter all the diversity that humanity can offer. We see many family situations which gives one perspective and a broad awareness, and we hold the confidence (and confidences) of many in our role as a trusted adviser. This includes dealing with the challenging mental health issues of our clients and their family members from a legal perspective in their estate planning, and offering solutions to often perplexing and thorny issues.
The psychology of wealth is emerging as a distinct area of academic study and research. With aging baby boomers, and the trillion dollar wealth transfer that is now beginning to take place, we need to know more about wealth, how it impacts families, and how to successfully transition wealth.The reality is that most of those who have wealth are new to it. It has been estimated that of wealth holders, 75%-85% are self-made and only 10% -15% are inheritors.
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.
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.
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.
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.
Often people who are doing their estate planning have one overriding goal in mind: keep it simple. The so-called "KISS" principle is attractive, and may be appropriate for some. But for many, simplicity can be oversimplicity. Instead of being cost-efficient in the long term and allowing a streamlined estate administration process, oversimplicity can create more complications, increased taxes, disputes and, all too often, litigation than could have been avoided if their planning had been more comprehensive.