Principal Issues:
1. What constitutes a "gift by will" for purposes of subsection 118.1(5) of the Act.
2. Where a will stipulates that a donation be made to specified charities for specific percentages of the residual of the estate, but the amount of the "residual" depends upon certain discretionary actions of trustees with respect to tax elections does ss.118.1(5) apply to the deceased or ss.118.1(3) apply to estate.
3. Where a will stipulates that a gift is to be made to one several specified charities in an amount that is within a dollar range, would ss. 118.1(5) apply to deceased or ss.118.1(3) apply to the estate. Also, if a non-depreciable capital property is donated, would ss.107(2) apply.
4. When does ss.118.1(3) apply and when does ss.104(6) apply when trustees make a payment to a charity, out of the income of a trust?
5. When does ss.118.1(3) apply and when does ss.107(2) apply when trustees make distributions from an inter-vivos trust which lists charities as discretionary capital beneficiaries.
Position
1. Question of fact.
2. Generally, ss.118.1(5) would apply to deceased, provided actions of trustees and computation of residual are reasonable and in accordance with the terms of the will and provided no person has a discretionary right to encroach on capital of the estate.
3. If the charity is not specified, ss.118.1(5) will not apply. If charity is specified in the will, ss.118.1(5) would generally apply with respect to the minimum amount stipulated in the will. Any donation in excess of the minimum would generally be a tax credit to the estate under ss.118.1(3). Ss.107(2) will generally apply where non-depreciable capital property is transferred to a charity in satisfaction of a capital interest in estate that was created by the decision ( by will or by trustees) to make a donation to the charity. It is noted that the issue of the charity needing to be specifically named in the will is under consultation XXXXXXXXXX .
4. Whether the distribution to the charity is a payment in satisfaction of the charity's income interest in the estate and is therefore eligible for a deduction under ss.104(6), or whether the distribution is a charitable donation eligible for a tax credit under ss.118.1(3), is a question of fact that depends upon the wording in the will and the intentions of the trustees in making the distribution.
5. As in (4), question of fact to be determined based upon the wording in the trust agreement and intentions of trustees in making the distribution to the charity.
Reasons:
1. It is a question of fact whether a particular transfer or designation in a will that property is to be transferred to a charitable organization is a gift at law. A determination could only be made after a thorough review of all relevant documents.
2. Previous positions - if charity to receive the gift is not specified in the will, then not a gift by will. Where terms of will are clear as to charity to receive donation and actions to be taken by trustees in arriving at the amount of the donation (i.e. the residual), generally, the trustees discretion with respect to the use of permissive tax elections not considered sufficient to disallow tax credit from coming under ss.118.1(5)
3. The donation of the minimum would come within the previous positions taken with respect to the intent of ss.118.1(5), and the excess is clearly a decision made by the trustees to make a donation from the estate and therefore ss. 118.1(3) should apply. Also, wording of ss.107(2).
4. Question of fact.
5. Question of fact.
XXXXXXXXXX 991821