CRA confirms that indefeasible vesting requires inter alia ascertainment but not conveyance

The will of the taxpayer provided for the residue of the estate to be held for the surviving spouse, as a spousal trust.

CRA indicated that in order for s. 70(6) to apply, the capital property of the deceased must be "transferred or distributed" as a consequence of the death (e.g., per s. 248(8), under the will), to the spousal trust within 36 months of the death, subject to extension. In this regard, Boger Estate established that a formal conveyance is not necessary to transfer or distribute the property in question, so that the absence of such a conveyance of the residue to the testamentary spousal trust would not preclude this requirement from being satisfied.

Regarding the general requirement in s. 70(6) that the property of the deceased vest indefeasibly in the spousal trust within 36 months of the death, CRA indicated that property can vest indefeasibly in a beneficiary even if the title has not yet been transferred by a legal conveyance - for example, where there is a specific, non-contingent, and uncontested bequest to a surviving spouse and it is clear that the estate has sufficient assets to allow its distribution. Regarding the residue of an estate, generally, only once it is clarified and the beneficiaries have an enforceable right to the property can those assets vest in the beneficiaries.

Neal Armstrong. Summary of 17 June 2025 STEP Roundtable, Q.7 under s. 70(6).