Cases
Picard v. Lagotte Succession, 2017 QCCS 330 (Quebec Superior Court)
A surviving spouse (Picard – who was not one of the residuary beneficiaries of the estate of his wife) argued that it was improper for the...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 70 - Subsection 70(6.2) | executor was authorized under will to choose not to elect | 595 |
Greenwood Estate v. The Queen, 94 DTC 6190, [1994] 1 CTC 310 (FCA)
The deceased taxpayer agreed to sell shares to his three sons for $800,000, payable by a promissory note, with such sale to be completed within 30...
Van Son Estate v. The Queen, 90 DTC 6183, [1990] 1 CTC 182 (FCTD)
The deceased taxpayer bequeath his 49% shareholding in a private company to his surviving wife. Joyal J. found that under a buy-sell agreement of...
Hillis v. The Queen, 83 DTC 5365, [1983] CTC 348 (FCA)
Per Clement, D.J.: Only the property of the intestate taxpayer's estate to which his widow was entitled pursuant to the Intestate Succession Act...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Statutory Interpretation - Resolving Ambiguity | 58 |
Katz Estate v. The Queen, 76 DTC 6377, [1976] CTC 633 (FCTD)
Since the deceased is deemed to have disposed of depreciable assets immediately before the time of his death, his representatives are precluded...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 249 - Subsection 249(1) | 50 |
See Also
Husel Estate v. The Queen, 94 DTC 1765, [1995] 1 CTC 2298 (TCC)
A transfer of shares to the wife of the deceased in consideration for cash and set-off of debts owing to her by the estate occurred pursuant to a...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) | 83 |
May Estate v. MNR, 89 DTC 534, [1989] 2 CTC 2305 (TCC)
Following litigation in the Saskatchewan Surrogate Court, an order was made vesting in the deceased's widow nine one-quarter parcels of land....
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - General Concepts - Effective Date | 23 |
The Queen v. Green Estate, 78 DTC 6324, [1978] CTC 501 (FCTD)
The testatrix provided in her will that the residue should be divided among her children then alive when there should no longer be any child of...
Estate of the Late Gordon Clark Terrill v. Minister of National Revenue, [1987] 2 CTC 2216, 87 DTC 504
The will of the deceased bequeathed all of his property in trust for the exclusive benefit of his wife during her lifetime subject to the effect...
Administrative Policy
20 June 2023 STEP Roundtable Q. 14, 2023-0967371C6 - s.70(6) & Application to Extend
What is the process for making a written request to extend the 36-month period under s. 70(6) for the property of the deceased to vest...
29 May 2018 STEP Roundtable Q. 4, 2018-0743951C6 - Safe income and estate
CRA considers that there is no flow-through to the estate and beneficiaries of safe income attributable to shares where they were deemed to have...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 55 - Subsection 55(2.1) - Paragraph 55(2.1)(c) | safe income flow through on a s. 70(6), but not s. 70(5), transfer | 111 |
13 June 2017 STEP Roundtable Q. 11, 2017-0693331C6 - Substituted property of estate
The will of the deceased specifies that specified shares are to be transferred to a spousal trust. While the estate assets are being administered,...
9 October 2015 APFF Financial Strategies and Instruments Roundtable Q. 9, 2015-0596611C6 F - Transfer 70(6)
An executor of an estate, whose residue was bequeathed to a spousal trust, paid the estate debts with liquid assets, transferred 75% of the...
16 June 2014 STEP Roundtable, 2014-0523091C6 - STEP CRA Roundtable June 2014
Can s. 70(6) apply to a transfer by a taxpayer both to his or her spouse and a transfer to his or her common law spouse? CRA stated:
…It is...
11 January 2012 STEP Roundtable, 2011-0402291C6 - Subsection 248(8)-Intestacy-Transfer of Property
Where a taxpayer dies intestate, then provided the property of the deceased is distributed to the beneficiaries in accordance with the shares...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) | 108 | |
| Tax Topics - Income Tax Act - Section 60 - Paragraph 60(l) | 108 |
12 March 2012 External T.I. 2010-0378451E5 - Vested Indefeasibly
Para. 8 of IT-449R (archived) re the effect of a buy-sell agreement on the "indefeasibly vested" requirement is still supportable.
8 October 2010 Roundtable, 2010-0371911C6 F - Biens dévolus au conjoint
In a situation where, in order to pay debts of the deceased, the executors of an estate sold a portion of the shares which were bequeathed to the...
30 January 2009 External T.I. 2008-0287541E5 F - Décès - actions détenues en indivision
On the death of Y, his co-ownership interest in shares held with his spouse (X) passed to a spousal trust for her following the settling of the...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(21) | block of shares is not a single property, so that partition must occur on a share-by-share basis giving rise to separately-held fractional shares | 277 |
17 December 1996 Internal T.I. 9625727 - REMARRIAGE CLAUSE & DEF'N OF SPOUSAL TRUST
Where a will provided that the widow was entitled to receive the income of the estate but that her entitlement was "to be terminated upon her...
9 May 2007 External T.I. 2006-0189931E5 F - Renonciation à une fiducie par un conjoint
The beneficiary of a testamentary spousal trust renounces all entitlements under the trust (other than income that has accrued to date) without...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 69 - Subsection 69(1) - Paragraph 69(1)(b) | renunciation of interest in spousal trust not a disposition to the family beneficiaries | 84 |
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition | extinguishment of trust interests on their renunciation is a disposition of the renounced interest, but resulting variation of trust to accelerate distribution entitlements is not | 167 |
| Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(4) - Paragraph 104(4)(a) | variation of spousal trust, following renunciation by spouse, to accelerate distribution entitlement of residuary beneficiaries would not engage s. 104(4) until distribution | 195 |
27 January 2004 External T.I. 2003-0006025 F - Roulement d'une partie d'un bien
Where part of an immovable was distributed to the spouse of the deceased, and the other interests in the immovable were distributed to children of...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Property | s. 70(6) can apply to a part interest in a single real property | 41 |
14 November 1996 External T.I. 9627345 - LENDING POWERS IN A SPOUSAL TRUST
Before referring to Peardon v. MNR, 86 DTC 1045, RC in its summary stated that "lending or investment of trust property to a non-spouse on...
5 May 1995 External T.I. 9500985 - ASSUMPTION OF LIABILITIES
A transfer of shares of a private corporation made to the surviving spouse after her agreement to assume liabilities of the estate and provide...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) | 63 |
17 August 1994 External T.I. 9410535 - TRUSTS - "AS A CONSEQUENCE OF THE TAXPAYER'S DEATH"
A discretion accorded by the will to the executors to determine the particular assets to be distributed to the spouse or spousal trust of the...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) | 41 |
30 November 1993 Income Tax Severed Letter 9327165 - Vested Indefeasibly
In determining whether a by-sell agreement in a shareholders' agreement would result in shares not be considered to vest indefeasibly in the...
22 November 1991 T.I. (Tax Window, No. 13, p. 7, ¶1632)
A designation under s. 104(13.1) or (13.2) will not affect the status of a spousal trust.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(4) | 16 |
22 August 1991 T.I. (Tax Window, No. 8, p. 19, ¶1406)
The spouse is entitled to receive all of the income of the trust only if the sole discretion to receive all or part of the income is in the...
15 April 1991 T.I. (Tax Window, No. 2, p. 23, ¶1202)
Where a bequest to a surviving spouse is made in addition to the surviving spouse's entitlement under the Family Law Act (Ontario), two valid...
3 December 1990 Memorandum (Tax Window, Prelim. No. 2, p. 15, ¶1077)
An apartment building and the underlying land generally can be treated as two separate properties, with the result that s. 70(5) can be applied to...
14 November 1990 T.I. (Tax Window, Prelim. No. 2, p. 10, ¶1042)
Where a deceased taxpayer's surviving spouse receives property from the estate pursuant to his or her equalization right, the property will be...
14 May 1990 T.I. (October 1990 Access Letter, ¶1466)
Where the surviving spouse has the right to put the shares of the deceased to the other shareholders, and the other shareholders have a call...
2 April 1990 T.I. (September 1990 Access Letter, ¶1420)
A clause in a will empowering the executors determine whether a particular receipt was on income or capital account serves only to facilitate the...
19 April 1990 T.I. (July 1990 Access Letter, ¶1324)
After reconsidering its technical interpretation of 7 December 1989, RC was of the view that a designation under s. 104(13.1) or (13.2) and the...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - 101-110 - Section 108 - Subsection 108(1) - Testamentary Trust | 74 |
7 December 1989 T.I. (May 1990 Access Letter, ¶1225)
Where a trust pays the tax liability out of trust income resulting from an s. 104(13.1) designation, the requirements of s. 70(6)(b)(i) will not...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13.1) | 33 | |
| Tax Topics - Income Tax Act - 101-110 - Section 108 - Subsection 108(1) - Testamentary Trust | 58 |
3 November 89 T.I. (April 90 Access Letter, ¶1173)
A spousal trust will be created where the will directs the establishment of a trust for a spouse that leaves total discretion to the executor to...
84 C.R. - Q.29
Re usufructs.
80 C.R. - Q.42
If at the time a widow acquires shares under her husband's will, she is bound under a buy-sell agreement to sell them, there is no indefeasible...
IT-449R "Meaning of 'Vested Indefeasibly'"
Indefeasible vesting where rights held in trust for multiple beneficiaries
1. ... Where property is held in trust for the benefit of one or more...
IT-305R3 "Establishment of Testamentary Spouse Trust"
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - General Concepts - Payment & Receipt | 32 |
Articles
Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Taxation of Trusts Resident in Canada", Chapter 3 of Canadian Taxation of Trusts, (Canadian Tax Foundation), 2016.
Treaty relief from residency requirement in 70(6) – but “will” requirement (p. 171)
Subsection 70(6) applies to a transfer to a taxpayers...
Paragraph 70(6)(a)
Administrative Policy
30 September 2010 Internal T.I. 2010-0373901I7 F - Bigamie fiscale - transfert de biens au décès
The taxpayer lived with his spouse in Immovables A, but thereafter commenced to live separate and apart from her, but did not divorce from her,...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 40 - Subsection 40(4) - Paragraph 40(4)(b) - Subparagraph 40(4)(b)(i) | application of s. 40(4)(b)(i) by both surviving spouse re House A and surviving common-law partner re House B – but not for overlapping years | 244 |
Paragraph 70(6)(b)
Administrative Policy
Folio S6-F4-C1, "Testamentary Spouse or Common-law Partner Trusts," 3 February 2022
1.2-1.3 Indefeasible vesting requirement. The capital property distributed to the spouse trust etc. must vest indefeasibly in it within 36 months...
20 April 2016 External T.I. 2015-0601141E5 - Delay in final distribution from spousal trust
Would a testamentary trust qualify as a spousal trust if the deceased taxpayer’s will deferred the final distribution date for the spousal trust...
18 April 2005 External T.I. 2004-0093821E5 F - Fiducie créée par testament
Under a mooted spouse trust, the spouse has the exclusive and unconditional right to all annual income but it remains in the spouse's discretion...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - 101-110 - Section 108 - Subsection 108(1) - Testamentary Trust - Paragraph (c) - Subparagraph (c)(i) | beneficiary electing not to receive income before it becomes payable does not taint the trust (cf. renouncing income already payable) | 288 |
13 August 2002 External T.I. 2002-0143255 F - Par. 70(6)(b)
Mr. X's will provided a testamentary trust for Ms. X, who was entitled to all the income, with their children as the capital beneficiaries on her...
Articles
Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Classification of Trusts for Income Tax Purposes", Chapter 2 of Canadian Taxation of Trusts (Canadian Tax Foundation), 2016.
Right of spouse to enforce payment of income (pp. 90-1)
It seems that the spouse or common-law partner must each year be able to enforce payment...
Subparagraph 70(6)(b)(ii)
Administrative Policy
7 October 2022 APFF Roundtable Q. 6, 2022-0942141C6 F - Rollover under 70(6) and gifts to charities
Mrs. X's late husband created a testamentary spousal trust. Considering that charitable donations have always been part of Mrs. X's cost of...
7 October 2020 APFF Roundtable Q. 5, 2020-0852171C6 F - Usufruct of a principal residence
A housing unit is subject to a usufruct created by the Quebec will of Mr. X, with Mr. X’s surviving spouse (Ms. X) being the usufructuary, and...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 54 - Principal Residence - Paragraph (c.1) | a deemed s. 248(3) testamentary usufruct trust might access the principal residence exemption on the spousal usufructuary’s death or on her surrendering her interest | 409 |
| Tax Topics - Income Tax Act - 101-110 - Section 107 - Subsection 107(4) | application of s. 107(4) to termination of deemed s. 248(3)(a) spousal trust | 472 |
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(3) | application of s. 248(3) to usufruct created by will and terminated by death of usufructuary or surrender by her, or assignment or death by bare owner | 286 |
5 October 2018 APFF Financial Strategies and Instruments Roundtable Q. 7, 2018-0761511C6 F - Rollover to spousal trust on death
The decedent bequeathed, to a spousal trust, insurance policies (for which he had been the policyholder and beneficiary) on the lives of his...
20 April 2017 External T.I. 2016-0672501E5 F - Usufruct and Use of capital of a trust by a spouse
The will of the Quebec deceased bequeathed the usufruct of rental property (the "Immovable") to his spouse and the bare ownership to his adult...
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(3) - Paragraph 248(3)(a) | deemed spousal trust created through will | 121 |
5 October 2012 Roundtable, 2012-0453121C6 F - Fiducie au conjoint-police d'assurance-vie
testamentary trust, with a policy endorsement for the suspension of the payment of premiums throughout its holding by a spousal trust would not in...
Paragraph 70(6)(d)
Administrative Policy
15 September 2004 Internal T.I. 2004-0075001I7 F - Transfert de bien lors du décès d'un conjoint
In 1994, when the capital cost of a taxpayer’s building was $91,000 and the total depreciation deducted since acquisition was $12,000, the...
Paragraph 70(6)(d.1)
Articles
Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Taxation of Trusts Resident in Canada", Chapter 3 of Canadian Taxation of Trusts, (Canadian Tax Foundation), 2016.
Extinguishing of unused LP losses (pp. 170-171)
Other than for the purposes of paragraph of 98(5)(g), this paragraph [70(6)(d.1)] provides that...