A
W
Prociuk
(orally):—The
executors
and
trustees
of
the
Estate
of
Adolphina
Thornton
Tassie
appeal
from
an
assessment
by
the
respondent
dated
June
19,
1972,
wherein
federal
estate
tax
in
the
sum
of
$2340.60
was
levied
on
the
net
value
of
the
estate,
being
established
at
$94,328.72.
The
testatrix,
domiciled
in
Vernon,
British
Columbia,
died
testate
on
or
about
February
3,
1970.
She
was
survived
by
her
husband,
Gilbert
C
Tassie,
aged
86,
and
two
adult
sons,
William
J
and
Peter
—
they
being
the
principal
beneficiaries
under
her
last
will
and
testament.
The
point
in
issue
is
whether
or
not
the
deceased,
by
her
will,
created
a
trust
within
the
meaning
of
section
7
of
the
Estate
Tax
Act
of
the
entire
estate
for
the
benefit
of
her
surviving
husband
during
his
lifetime.
The
appellants
contend
that
she
did.
The
respondent
has
taken
the
position
that
only
a
portion
of
the
estate
was
so
created
—
namely,
the
house,
the
land
contiguous
thereto,
household
furnishings
and
a
sum
of
$2,500
payable
to
the
husband
pursuant
to
a
court
order
to
which
I
shall
make
reference
later;
and,
the
remainder
of
the
estate
is
taxable.
By
her
will,
dated
May
19,
1964,
which
was
duly
probated
on
August
20,
1970
in
the
Supreme
Court
of
British
Columbia,
the
deceased
gave
all
her
estate
in
trust
to
the
executors
and
trustees,
with
directions,
the
pertinent
portions
of
which
are:
(a)
To
pay
my
just
debts,
funeral
and
testamentary
expenses.
(b)
To
hold
my
home
and
the
land
contiguous
thereto,
together
with
all
articles
of
personal,
domestic
and
household
use
or
ornament,
for
the
use
of
my
husband
until
his
death
or
until
he
shall
in
writing
advise
my
Trustees
that
he
he
no
longer
desires
to
have
such
home,
property
or
articles
held
for
him,
whichever
shall
first
occur,
when
the
said
property
shall
fall
into
and
form
part
of
the
residue
of
my
estate.
The
specific
bequests
hereinafter
provided
shall
be
subject
to
this
provision
in
favour
of
my
husband,
which
shall
have
priority.
I
WILL
AND
DECLARE
that
my
Trustees
may
in
their
uncontrolled
discretion
make
payments
for
taxes,
insurance,
repairs
and
any
other
charges
or
amount
necessary
for
the
general
upkeep
of
the
said
property
while
it
is
held
for
my
husband,
and
may
make
them
out
of
capital
or
income,
or
in
such
proportions
as
they
think
fit.
There
then
follow
certain
small
specific
bequests
of
$100
each.
Paragraph
(d)
reads
as
follows:
(d)
SUBJECT
to
the
provisions
hereinbefore
made
for
my
husband,
to
deliver
the
following
specific
bequests:
and
here
follows
a
list
of
personal
items,
such
as
silverware,
paintings,
recordings,
etc
to
various
beneficiaries.
The
trustees
are
also
empowered
to
invest
any
moneys
in
securities.
The
final
paragraph
of
the
will,
being
paragraph
(i),
reads
as
follows:
(i)
I
make
this
will
with
the
full
knowledge
that
my
sons
will
insure
that
their
father
at
all
times
has
a
comfortable,
pleasant
and
dignified
home
for
the
balance
of
his
lifetime.
The
executors
and
trustees
are
the
Royal
Trust
Company
of
Kelowna,
British
Columbia
and
the
two
sons
mentioned
above.
It
appears
that
the
husband
required
some
cash,
and
a
dispute
arose
as
to
whether
or
not
he
was
entitled
to
any
under
the
will.
The
husband—the
said
Gilbert
Tassie—then
petitioned
the
Supreme
Court
of
British
Columbia
under
the
Testator's
Family
Maintenance
Act,
RSBC
1960,
c
378,
and,
by
consent
of
all
parties
then
present,
Mr
Justice
Hinkson,
on
February
9,
1972,
ordered
the
executors
and
trustees
as
follows:
(a)
To
pay
the
sum
of
$2,500.00
cash
to
the
Petitioner,
GILBERT
CULLODEN
TASSIE,
from
the
residuary
estate
referred
to
in
said
paragraph
(e)
of
the
Last
Will
and
Testament
of
ADOLPHINA
THORNTON
TASSIE,
deceased;
and
(b)
To
pay
the
net
income
from
the
remainder
of
the
residuary
estate
referred
to
in
said
paragraph
(e)
after
payment
of
the
said
$2,500.00,
to
the
Petitioner,
GILBERT
CULLODEN
TASSIE,
during
his
lifetime,
said
payment
to
be
made
from
date
of
death
of
ADOLPHINA
THORNTON
TASSIE,
deceased;
and
(c)
To
encroach
upon
the
capital
of
the
estate
of
ADOLPHINA
THORNTON
TASSIE,
deceased,
for
such
sum
or
sums
as
may
in
the
discretion
of
the
Executor,
THE
ROYAL
TRUST
COMPANY,
after
consultation
with
the
other
Executors,
William
Joseph
Tassie
and
Peter
Tassie,
be
required
for
the
need
of
the
Petitioner,
GILBERT
CULLODEN
TASSIE.
It
appears
that,
initially,
the
respondent
took
the
position
that
a
limited
trust
was
created
by
the
said
court
order,
but,
at
the
hearing,
learned
counsel
for
the
respondent
advised
that
he
was
not
relying
on
the
court
order,
but
on
that
portion
of
the
will
found
in
paragraph
(b).
He
further
submitted
that
the
inclusion
of
$2,500
as
an
exemption
in
the
assessment
was
a
generous
inadvertence
on
the
part
of
the
respondent,
and
properly
ought
to
be
added
to
the
aggregate
taxable
value.
In
my
humble
opinion,
if
the
testatrix
did
not
intend
to
give
a
life
interest
of
her
entire
estate
to
her
husband,
then
what
is
the
meaning
of
the
sentence
in
paragraph
(b)
of
the
said
will
and
testament
which
states
unequivocally:
...
The
specific
bequests
hereinafter
provided
shall
be
subject
to
this
provision
in
favour
of
my
husband,
which
shall
have
riority.
.
.
.
Clearly,
the
size
of
the
estate
is
many
times
more
than
substantial
to
pay
taxes,
insurance
and
repairs
on
the
house,
which
was
valued
at
approximately
$22,000.
If
she
had
not
intended
her
husband
to
use
the
money
as
he
required
it,
she
would
not
have
placed
this
rider
on
the
several
small
hundred-dollar
specific
bequests.
There
would
be
no
need
to
hold
these
and
other
specific
bequests
till
the
husband
passes
on
or
signifies
in
writing
that
he
no
longer
desires
to
have
such
home,
property
or
articles
held
for
him.
The
final
direction
to
her
sons
is
another
point
which
indicates
that
she
did
not
intend
her
husband
to
live
in
her
house
hungry
and
penniless.
In
conclusion
I
find
that
the
testatrix,
by
her
will,
gave
her
husband
a
life
interest
in
her
estate,
and
thereby
created
a
trust
within
the
meaning
of
section
7
of
the
Estate
Tax
Act.
The
appeal
is
allowed,
and
the
matter
referred
back
to
the
respondent
for
reassessment
accordingly.
Appeal
allowed.
Email this Content