Words and Phrases - "contributed"
Where the trustees of a Quebec inter vivos trust have the power to appoint beneficiaries including a testamentary trust, does the testamentary trust, if not so designated, lose its status as a testamentary trust? CRA stated (TaxInterpretations translation):
[A] testamentary trust that is part of the class of persons from whom the trustee can designate beneficiaries of an inter vivos trust has a beneficial interest by virtue of subsection 248(25).
In finding that the purported testamentary trust would not qualify because its contingent interest in the inter vivos trust was not property contributed to it by the deceased, CRA stated:
[T]here is no requirement to restrict the expression "property …contributed" to the assets of the inter vivos trust. In fact, we are of the view that the interest of a testamentary trust in an inter vivos trust is property which is contributed to it gratuitously otherwise than by a particular deceased on or after that individual's death and as a consequence thereof.
Consequently, whether such capital or income interest in the inter vivos trust is a future or conditional interest, a trust established by will would lose its status as a testamentary trust within the terms of subsection 108(1) – or not acquire that status in the first place - if it received an interest in an inter vivos trust. The trust established by will receives such an interest from the moment it obtains a beneficial interest as described in subsection 248(25).
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|Tax Topics - Income Tax Act - Section 248 - Subsection 248(25)||testamentary trust that was included in the class of potential beneficiaries of a discretionary inter vivos trust was a beneficiary||230|