Advocate Jan 2014

30 VOL. 72 PART 1 JANUARY 2014
THE ADVOCATE
CONCLUSION
It has long been the task of lawyers to help clients transfer their assets by
will. But lawyers can also help clients arrange their affairs so that assets
pass outside a will, thereby avoiding the drawbacks inherent in transfers
under a will.
ENDNOTES
1. Henry S Theobald, Concise Treatise on the Law of
Wills, 2nd ed (London: Stevens & Sons, 1881).
2. Ibid, 16th ed (London: Sweet & Maxwell, 2001).
3. British Columbia’s Wills, Estates and Succession Act,
SBC 2009, c 13, in force 31 March 2014, BC Reg
148/2013, empowers the court to look outside a will
for evidence of a will-maker’s intentions. If the court
determines that a record or document represents the
testamentary intentions of a deceased person, the
court may order that such a record or document “be
fully effective as though it had been as the will or part
of the will of the deceased person”: s 58(3).
4. The canons of textual interpretation, including those
applicable to wills, are expounded in a recent book
co-authored by Justice Antonin Scalia of the United
States Supreme Court: Antonin Scalia & Bryan A
Garner, Reading Law: The Interpretation of Legal
Texts (St Paul, MN: Thomson/West, 2012).
5. [1962] 2 All ER 837.
6. A formal system of written wills appears to have been
introduced by the Statute of Wills, 1540 (UK), 32 Hen
8, c 1.
7. Mark Twain, A Connecticut Yankee in King Arthur’s
Court (1889), c 8.
8. In British Columbia, dependants-relief legislation is
included in the Wills, Estates and Succession Act,
supra note 3 at ss 60–72.
9. [1994] 2 SCR 807.
10. Ibid at 815.
11. Genesis 48:19.
12. Jacquie McNish & Paul Waldie, “The dark side of
Canada’s inheritance system”, The Globe and Mail
(4 March 2011), online: .
13. Estate of Paul Penna, 2010 ONSC 6993.
14. R v Singleton, 2010 BCSC 1734.
15. Income Tax Act, RSC 1985, c 1 (5th Supp), s 159(3).
16. In British Columbia, the annual fee payable to an
executor is authorized by the Trustee Act, RSBC
1996, c 464, s 88(3).
17. Charles Dickens, Bleak House (1852), c 1.
18. Under British Columbia’s Wills, Estates and Succesion
Act, supra note 3, an estate composed wholly of
personal property of less than the currently prescribed
amount of $50,000 can avoid the legal
requirement of obtaining a grant of probate.
19. Under Canada’s current income tax system, individual
transferors of capital assets retain approximately
75 to 80 per cent of transfer gains subject to tax. The
extent of retention varies by province due to varying
provincial tax rates.
20. Income Tax Act, supra note 15, clause 73(1.01)
(c)(ii).
21. Further advantages of an alter ego trust are mentioned
in Mawdsley v Meshen, 2012 BCCA 91 at
para 2.
22. I Timothy 6:7, also quoted in the opening sentence
of the preface to the 2001 edition of Theobald’s
Treatise.
23. Helen Clapesattle, The Doctors Mayo (Garden City,
NY: Garden City Publishing, 1943) at 21–22.
24. In British Columbia, division of family property is
dealt with in the Family Law Act, SBC 2011, c 25, ss
81–109.
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