Recent developments in Canada in the areas of trusts and estates law

Abstract

There have recently been significant changes and proposed changes to the law of trusts and estates in Canada. These developments demonstrate several themes. First, there are signs that the provincial governments are willing and attempting to modernize and harmonize legislation pertaining to Wills and the administration of estates. The best example of this is the recently enacted Wills and Succession Act (SA 2010, c W-12.2) in Alberta (the WSA). The WSA demonstrates an understanding on the part of the Alberta government that the world is changing and that it is not often practical, logical or necessary to rely on dated formalities. Second, it is clear that there are provinces taking steps to better control and restrict how individuals deal with estates, powers of attorney for property, Wills and trusts. Ontario, for example, is moving towards greater regulation in the administration of estates. The province is also assuming responsibility for the protection of the elderly and vulnerable. Finally, there has been a concerted effort by the legislatures, taxing authorities and courts in attacking trust structures, both domestically and internationally. This is mainly being done in an effort to provide greater certainty respecting the taxation of trusts and to close loopholes to better protect the tax base. This article endeavours to highlight these recent changes in an effort to help better understand the direction Canadian governments and courts are heading in the areas of trusts and estates law.