Principal Issues:
1. Whether a gift of the residue of a taxpayer's estate to a registered charity would constitute a gift by will under subsection 118.1(5).
2. If the residue gifted consists of publicly traded shares, can the executor elect under subsection 118.1(6)?
3. If the residue gifted consists of publicly traded shares, will the reduced inclusion rate under paragraph 38(a.1) apply to a capital gain arising on the deemed disposition of such shares under section 70?
Position:
1. Yes, provided that the gift is made in accordance with the terms of the will.
2. Yes, provided the requirements of subsection 118.1(6) are met.
3. Yes, provided the requirements of paragraph 38(a.1) are met.
Reasons:
1. Previous opinions.
2. Previous opinions.
3. Where the gift is made in accordance with the terms of the will, it is our view that the reduced inclusion rate will apply if the requirements of paragraph 38(a.1) are otherwise met.