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Category: Wills Estates and Powers of Attorney

Indigenous Persons and Ontario Probate Law – Is Probate Tax aka Estate Administration Tax Payable

Indigenous Persons and Ontario Probate Law
Date: 18 Feb, 2026| Author: Fred Streiman

The applicability of Ontario law to indigenous persons is a complicated one, and the paramount law is the federal Indian Act. The Ontario Estates Act and Estates Administration Tax Act indicate that for a deceased indigenous person ordinarily living off the reserve, Ontario law applies. This is important as to whether or not the province’s probate tax of 1.5% would apply. This needs careful consideration. A few scenarios arise. If the deceased was a status Indian person, who resided off the reserve and had property off the reserve, the estate administration tax also known as probate tax is payable on the value of that property.

Alternatively, if the deceased was a status Indian person who resided off reserve, had property on a reserve, but that reserve property is being transferred to another status Indian the estate administration tax aka probate tax is not payable on the value of that property. Wills and Probate Lawyers come across this situation regularly.

None of this is simple. When we deal with indigenous client’s their reserve or Tribe often has a legal team that can offer assistance.

Executor – Non-Ontario Resident

Executor - Non-Ontario Resident
Date: 09 Jan, 2026| Author: Fred Streiman

One of the things that your experienced Will and Estate Lawyers will consider is who are you appointing as the executor aka trustee of your Will. The executor is the person that carries out the instructions you set out in your Will. You would think that you had free reign to name anyone that you wanted to and to a degree this is correct. Not only that, but the courts have has also indicated more than once that the choice made by the willmaker is to be shown great deference. However, there are technical difficulties when you name someone who does not live in Ontario as an executor. The Estates Act Section 5 baldly states that letters of administration (probate) shall not be given to someone who does not live in Ontario. The court has the ability to override that provision, but that may require a bond which is a which is a long and potentially costly process. Another scenario is if there was no Will whatsoever then again with the courts per permission and in all likelihood a bond, will be required for such a person be appointed. That generally will require the consent of all of the named beneficiaries. Special dispensation is given to residents of the Commonwealth. So, you do not need a bond for your Uncle in Malta, but yes for your sister in Buffalo. Estate Lawyers keep this at the front of their minds when taking will instructions. Dale Streiman Law LLP takes pride in its work as one of the Lawyers in Brampton for Wills.

BONDS REQUIRED FOR PROBATE

BONDS REQUIRED FOR PROBATE
Date: 17 Dec, 2025| Author: Fred Streiman

A bond is required to accompany any application for a Certificate of Appointment of Estate Trustee, formally known as probate, when there is no Will or if there is a Will when the person applying to be appointed as estate trustee was not named as an Estate Trustee of the Will, or where the applicant neither lives in Canada, or a country that is a member of the Commonwealth. So an Estate Trustee (aka an executor) who lives in Malta as an example, does not need a bond, but your Uncle in Buffalo does. This is set out in the Estates Act, Section 6. Experienced Wills and Probate have to deal with this complication frequently.

Generally, bonds are obtained from insurance companies and there are a limited number of them that will issue a bond. There is a significant premium, and you have to qualify. The purpose of the bond, which generates an expensive premium, is to guarantee that the estate trustee appointed by the court will not abuse or run off with the estates’ assets. The court has the ability to dispense with the necessity of a bond, but that can require a relatively expensive court application. The law on this can be found in The Estates Act section 35 and Rule 74.11 of the Rules of Civil Procedure. The cost of a bond will vary depending on the size of the estate. If the estate is worth less than half a million dollars, the bond premium can be anticipated at between 1.5% and 2% of the estates’ value. If the estate is worth half a million dollars, you can expect a premium of 1% to 2% in the estates’ value, and if the estate exceeds one million in value, the bond premium will be somewhere in the region of 1% to 1.5%. The bonding company will want a great deal of information about the applicant, all directed towards the financial responsibility and liquidity of the applicant. As Will and Estate Lawyers we can assist in negotiating these bonds or drafting a motion for the court to dispense with the bond. The consent of all beneficiaries is generally required, but in the case of a minor beneficiary that is not a enough. In the case of a minor beneficiary (ie under the age of 18) the Office of the Children’s Lawyer must become involved. This now moves to the realm of Estate Lawyers, who have experience in Estate Litigation.

LAWYER’S JOB – SELLING ESTATE ASSETS TO PAY DEBTS EVEN IF THEY ARE SPECIFICALLY GIFTED

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Date: 01 Dec, 2025| Author: Fred Streiman

The decision by the Ontario Court of Appeal, which upheld the trial decision of Justice Chown in the Stewart Estate v. Stewart 2025 ONCA 575, is a clear lesson that preparing a Will requires the hand of an experienced Wills and Probate Lawyer rather than the casual work by a Jack of all trades lawyer, who drafts wills as a very casual sideline. We encounter this frequently in which potential clients who are only driven by the quoted fee can always find another lawyer who will do it for less.

Our experienced Will and Estate lawyers will ask the tough questions, what if? When drafting Wills and Power of Attorney, our job is to be the eternal pessimist in coming up with hypothetical scenarios that could befall the client. That is the drafting lawyer’s job and ignoring these questions simply leads to a few dollars saved at the time of drafting the Will and many thousands of dollars and expenses trying to fix the problem after death. In the Stewart case, a husband and wife had 13 children. In 1989, the husband who owned two farms drafted a Will and made a bequest of the farms to two of the children based upon the payment of what was then their market value. After the parents had died many years later, the farms had skyrocketed in value and there were huge capital gains taxes in excess of $600,000 to be paid. There was nowhere else other than selling the farms for the estate to be able to come up with the money to pay the taxes. Many questions arose, one of which was whether or not despite the fact that there were specific bequests of the farms, could the estate trustee sell the farms to pay the taxes. Selling the farms would have of course frustrated the clear intention of the Will that the two sons were to be benefited far in excess of their 11 siblings. However, where else was the money to be obtained, and the estate trustees aka executors would have faced personal liability for not ensuring that the valid debts of the estate were paid.

The court in the end ordered that the farms could be sold, even though the two beneficiary sons had proposed paying the tax liability themselves in an effort to retain the farms.  This is an unusual scenario for Estate Lawyers. This required the input of experienced Estate Litigation Lawyers to convince the court of the only possible solution. All of this could have been avoided if the client had hired an experienced Wills Lawyers Brampton who would have asked the pessimistic hypothetical questions that are necessary to explore.

This complexity required an application to the court to provide guidance on what the estate trustees could and could not do.  From a cost perspective, an extremely expensive proposition, but a critical one.

LIFETIME CAPITAL GAINS EXEMPTION

LIFETIME CAPITAL GAINS EXEMPTION
Date: 14 Nov, 2025| Author: Fred Streiman

The lifetime capital gains exemption (“LCGE”) is an important one for our readers to be aware of. It is an incentive by the federal government to encourage entrepreneurs to build up a business, and when they sell it, the first $1.25 million of the profit that they have earned by building up the business is tax free. This generally applies to both farms, fishing properties and most commonly to qualified small business corporations, QSBC shares. Specifically, LCGE is generally only available when selling QSBC shares. This is work that must be guided by experienced Will and Estate Lawyers.

To determine if the QSBC shares qualify for the LCGE and to save a significant amount of tax, various tests must be met. 

  1. 90% of the assets are used principally in an active business carried on in Canada by the company.
  1. The QSBC shares must be owned by a person for two years immediately before the shares sale and 50% of the assets of the company must be used for an active business carried on in Canada, but at the time of the sale it must meet a 90% test. That is that 90% of the assets were used principally in an active business carried on in Canada by the company.

This is a relatively complicated tax question, but it is an important one as significant tax can be saved using such a large tax deduction. Clearly one will require the guidance of experienced tax and legal advisors to take advantage of this.

One can use the LCGE up to the maximum amount, which currently is $1.25 million, however that figure is indexed to inflation so one may not have used it up in the past. This again requires the executor, their lawyer and tax advisors to investigate clearly.

 

HOCKEY HISTORY AND WHY AN EXECUTOR CANNOT BUY THE ASSETS OF AN ESTATE

WHY AN EXECUTOR CANNOT BUY THE ASSETS OF AN ESTATE
Date: 30 Oct, 2025| Author: Fred Streiman

More from the perspective of Will and Estate Lawyers. An executor is deemed to have a fiduciary obligation to the estate’s beneficiaries. A fiduciary relationship calls for the highest level of trust and responsibility upon an individual.. Sometimes an executor, often a family member, will want to buy one of the assets of the estate such as a cottage or house.  Generally speaking, this is not permitted. However, one of the rare instances when it is permitted is when a provision was made in the Will itself that permitted such a purchase. For those long in the tooth such as the author, the Maple Leafs during one of their darkest periods, were owned by the late and some say not so great Harold Ballard. Harold Ballard named as one of his three executors Steve Starvo. Mr. Stavro wanted to buy the Maple Leafs from the estate and normally that would have been absolutely forbidden. However, Harold Ballard in his Will gave Steve Stavros that authority, and while this was debated, the Ontario Court of Appeal permitted that conflict to be waived as it was anticipated and consented to in Harold Ballard’s Will. Experienced Estate Lawyers are well aware of this conflict.

The moral of the story is that if you are drafting a Will and you anticipate wanting to give one of the beneficiaries or an executor the right to purchase an asset of the estate, bring that to the drafting lawyer’s attention. Otherwise, the fiduciary duty between the executor and the beneficiaries, even if you are a beneficiary, is paramount.  Wills and Probate Lawyers have to keep this in mind and ensure their clients understand this point.

HOW THE HELL AM I SUPPOSED TO KNOW ABOUT THE PRESUMPTION OF RESULTING TRUST

PRESUMPTION OF RESULTING TRUST
Date: 24 Oct, 2025| Author: Fred Streiman

We have written a number of times on the legal concept of the presumption of resulting trust. Using the search function, you can easily locate them within our blog articles. This subject is unfortunately a great money maker for Estate Litigation lawyers.

One of the client’s of our team of Will and Estate lawyers recently pointed out an extremely common-sense response to the presumption. To remind everyone, the presumption is that the law assumes no one gets anything for free.  If someone gives you money, even if they are as close as a parent or grandparent, the starting point is that this was a loan NOT a gift and it is a responsibility of the recipient to prove that it was a gift.

This is all well and good, but how is the average person even to know of this legal presumption, which is derived from the 2007 Supreme Court of Canada case of Pecore v Pecore.  In other words, how are you supposed to know that this is the law. Your parents want to gift you $100,000 to help you buy a house, which in today’s real estate market is not an unreasonable fact situation. Unless you have evidence that this was meant to be a gift, other beneficiaries of your parents’ estate can argue that no it was never a gift, it was a loan, pay it back so we can get our share of it.

Our other blog articles talk about the kind of evidence one can put forward to prove that it was a gift, but there is nothing as good as a piece of paper that neither the giftor nor the recipient ever thought would have been necessary.  But what lay person would even know that was important?  As experienced Will and Estate Lawyers, we cover this issue in our standard will questionnaire.

MUTUAL and MIRROR WILLS

MUTUAL and MIRROR WILLS
Date: 23 Oct, 2025| Author: Fred Streiman

Will and Estate Lawyers commonly prepare for couples, Wills that may be described as mirror Wills.  In that sense, the parties provide the very same provisions for the distribution of their estate. Commonly to each other and then their children.  However, a Will is an individual document not a contract.  Justice Cronk in the Ontario Court of Appeal case of Spence vs. BMO Trust Company,  stated “the freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law”.  Simply put, a Will is an individual document, and the Will Maker can change it at any subsequent time as long as one meets the usual rules of a valid Will.  Experienced Wills and Probate Lawyers understand this fundamental proposition.

However, a Mutual Will is different than a Mirror Will.  In a Mutual Will, generally between spouses, there is an explicit undertaking not to change one’s Will after the first has died. The normal motive is that after the first spouse dies, it is an effort to ensure the surviving spouse does not disinherit their children and are replaced by a new second spouse. However, a Will as we have stated above is a unilateral document and even if a Will says it is a mutual Will,  that still does not stop one from doing a new Will after the first spouse dies. However, what does occur if a valid mutual Will is prepared is the beneficiaries under the old Will who have now found themselves disinherited can sue and impose a constructive trust on those assets that have flowed in the second Will.  There is also the issue of in essence a mutual Will being a form of a marriage contract and is accordingly governed as well by the provisions of the Family Law Act. Full financial disclosure, independent legal advice and other considerations come into effect. However, Mutual Wills are a useful device when attempting to ensure that the children will indeed not be usurped by the unknown future spouse down the road.

It is not enough to simply say this is a Mutual Will. One needs the guidance of experienced Wills and Estate lawyers to prepare one.

EXECUTORS FEES – DID THE COURT OF APPEAL MAKE A MISTAKE

EXECUTORS FEES – DID THE COURT OF APPEAL MAKE A MISTAKE
Date: 22 Jul, 2025| Author: Fred Streiman

Will and Estate Lawyers have to regularly discuss with their clients how much an executor is paid to administer an estate.  In the June 9, 2025 decision of the Ontario Court of Appeal in Farmer v. Farmer by the Honourable Justices Lauwers, Miller and George they dismissed an appeal by an executor who had outrageously abused his position. He had taken advantage of his two brothers, the equal beneficiaries of their late Aunt’s estate. The detail of his greed is not relevant to this particular blog article. However, I remind everyone this is the second highest court in all of Canada.  The decision reads in part;

“Under section 61(1) of The Trustee Act, executors may be compensated at the rate of 2.5% for capital receipts and disbursements, 2.5% for income receipts and disbursements, and 0.4% on the average annual value of the assets as a management fee, but compensation may not be taken in advance unless the Will provides for it”.

This line is quite significant as it is erroneous, and what it is doing is formalising the rule of thumb that has existed for a lengthy time as to the entitlement of an executor. We have canvassed that in other blog articles Paying Your Estate Trustee: Some Important Considerations Regarding Compensation and Tax for Executors and HOW ARE EXECUTORS FEES CALCULATED.

An abridged version of section 61(1) of The Trustee Act actually reads as follows:

“A trustee ( aka executor )…..is entitled to such fair and reasonable allowance for the care, pains and trouble and the time expended in and about the estate as may be allowed by a Judge of the Superior Court of Justice”.

The section goes on to deal with a number of other related issues, but nowhere in the Act is there any provision for a specific formula as is quoted in the decision. What is important is that the Ontario Court of Appeal is again confirming the validity of the 2.5% starting point in calculating compensation for an executor.  This has been recognized in earlier decisions, but here we have no less an authority then the Ontario Court of Appeal.   Note that most estate lawyers simply use 5% of the gross value of the estate to calculate total executors fees.  I recognize that the esteemed Justices use the verb… executors “may” be compensated, but again here we have a stake in the ground confirming that the normal rule of thumb of 5% of the gross value is indeed where one should begin in calculating executor’s fees.  So in essence a practical rule of thumb is now yet again turned into judge made law, aka common law.

Wills and Probate Lawyers must keep these factors in mind.

There was an interesting comment further by the Court of Appeal, which reads as follows:

“The application Judge noted that the amount given to Eric was transferred in order to lower the assets of the estate below $100,000 in order to avoid probate and estate tax”.

I am not certain what $100,000 figure the court is referring to.  Estate administration tax kicks in for any estate having a value greater than $50,000.  Note, Manitoba has no probate tax.  Clearly one needs an experienced Wills and Estates Lawyers to seek probate and assist in administering an estate.

IS IT MINE OR DO I JUST THINK IT IS EXCLUSIVE POSSESSION VERSUS A LICENCE IN WILL INTERPRETATION

EXCLUSIVE POSSESSION VERSUS A LICENCE IN WILL INTERPRETATION
Date: 16 Jul, 2025| Author: Fred Streiman, Avi T. Stopnicki

The March 2025 decision of Justice Joseph di Luca in Tyndall v. Noyes is a brief yet important reminder of several key issues frequently encountered by Will and Estate Lawyers and Estate Litigation Lawyers, particularly when it comes to interpreting Wills and dealing with the rights of surviving spouses. A common scenario is that of a common law spouse being left behind—and their right to continue living in the “matrimonial home” owned solely by the now-deceased partner.

Gerry Tyndall, now 76 years of age and after 26 years of living with his common law spouse, the recently deceased Ms. Gail Hill, found himself at odds with her children from a prior relationship.

If I had a dime for every time this happens.

Under his common law spouse’s Will, he was granted the right:“Gerry…can remain living in my house until his death. At that time, the house will be sold and the proceeds divided between my four children. My estate will pay the taxes.”

The Will should have been drafted more carefully. The dispute revolved around whether this provision created a life estate, or merely a licence to occupy the home. This is a classic issue often addressed by Wills and Probate Lawyers and Estate Litigation Attorneys, especially when handling family disputes post-death.

The court, applying standard principles of Will interpretation—which Wills Lawyers in Brampton regularly navigate—found that what had been granted to Mr. Tyndall was the equivalent of a life estate. In essence, a life estate includes exclusive possession of the property, meaning no one else is permitted to live there without the life tenant’s consent. Mr. Tyndall was responsible for ongoing regular expenses such as utilities, while taxes and capital improvements were to be covered by the estate.

The lesser right—a licence—was discussed in the Barsoski Estate v. Wesley 2022 Ontario Court of Appeal case, which made clear that distinguishing a licence from a life estate is often very fact-specific. These types of nuanced property rights are familiar territory for Estate Lawyers and Powers of Attorney Lawyers, particularly when dealing with blended families or informal living arrangements.

What are the lessons from this case? First, that a Will should be drafted with as much precision as possible. If a life estate is to be granted, clear instructions should outline which party is responsible for specific expenses.

Wills and Estates Lawyers must also consider the capital gains implications of granting a life estate—but that’s a topic for another blog post.

For advice on drafting Wills, navigating Powers of Attorney, or handling Estate Litigation, consult experienced Wills and Estates Lawyers or Attorney Lawyers—particularly if you’re looking for Lawyers in Brampton for Wills or Wills Lawyers Brampton.

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