1. Paul W. Taylor & Kathleen McDormand BORDEN LADNER GERVAIS LLP
WILLS AND ESTATES
Presentation to the Law Society of Nunavut September 18, 2017
Paul W. Taylor & Kathleen McDormand
BORDEN LADNER GERVAIS LLP

2. Agenda Intestate Succession Custodianship and Guardianship of a Minor
Executor
Trusts
Assets in Other Jurisdictions
Wills from Other Jurisdictions
Will Substitutes
Probate Fees

3. Intestate Succession Dying “intestate” means dying without a Will.
Under the Intestate Succession Act:
Preferential share ($50,000 or the home) to spouse
If one child, ½ to child (or issue) and ½ to spouse
If two or more children, 2/3 divided among children (or issue) and 1/3 to spouse
If no spouse, all to children (or issue)
If no children, to living parents
If no living parents, to siblings
If sibling predeceased, to nieces and nephews
Then, next of kin

4. Custodianship and Guardianship of a Minor
Under the Children’s Law Act
Custodian manages the person, Guardian manages the property
In a Will, one can appoint someone to act as Custodian
In a Will, one can appoint someone to act as Guardian for 90 days
A Court Order must be obtained to obtain a Guardianship Order past such point (the appointment will survive until the Court Order is granted)
Guardian entitled to reasonable fees (custodian is generally not)

5. Executor / Administrator
Appointment
Executor is appointed under the Will.
If there is no Will, no executor is appointed in the Will, or the person appointed in the Will cannot act, an Administrator may be appointed by Court Order (Probate Rules provide the order of precedence, subject to judicial discretion).
Powers:
Generally, to inventory, liquidate, and distribute estate
Statutory / common law powers are somewhat limited, so are generally expanded upon / specified in Will

6. Executor / Administrator
Number:
No limit to the number of executors; the testator may also provide for their mode of replacement
Where there is more than one, they act by unanimous decision unless the will provides otherwise

7. Executor / Administrator
Remuneration:
An Executor or Administrator is entitled to remuneration (even if he or she is an heir)
Compensation may be set by the Will. Otherwise, it will be set by the Court on a passing of accounts or may be agreed by the beneficiaries (if all are over the age of majority and are capable)
While it is not set by tariff, a rule of thumb is generally:
2.5% of capital and income receipts
2.5% of capital and income disbursements
0.4% of the annual average value of the assets as a care and management fee
Where the Public Trustee acts as Executor or Administrator, set by Public Trustee Fee Regulations under the Public Trustee Act:
In general, about 5% of value of property and income

8. Executor / Administrator
Location:
There is no prohibition against appointing Executor in jurisdictions outside Nunavut, but a testator should keep in mind that it is often difficult for practical reasons for a liquidator outside the province to administer the estate property in Nunavut
Unless it is waived by the Court, Executors from outside Nunavut are required to post a bond. It can be helpful to include a clause in the Will indicating the testator’s wish that the bond requirement be waived.
Generally, an Administrator cannot be from outside Nunavut

9. Executor / Administrator
Delegation:
An Executor or Administrator cannot delegate their authority to make decisions (though they can delegate administrative tasks)
A Will may provide the ability to delegate authority, which will be limited to the constraints of the delegation clause in the Will

10. Trusts
For beneficiaries with disabilities (“Henson Trust”; Qualified Disability Trust)
For beneficiaries not able / inclined to manage property themselves
For children (can have an age of distribution over the age of majority)
Spousal trusts (ability to have income benefit spouse while retaining capital for next generation – useful in situations where a spouse is not the parent of one’s children)
A trust is settled by will (testamentary trust) or during the person’s lifetime (inter vivos trust)

11. Assets in Other Jurisdictions
It is possible to have multiple wills for property in different jurisdictions
Succession of personal property is governed by the law of the last domicile of the deceased, and succession of real property is governed by the law of the situs (i.e. where the real property is located)

12. Wills from Other Jurisdictions
A probated Will from outside of Nunavut can be resealed (from within the Commonwealth) or provided an ancillary grant of probate (outside the Commonwealth)

13. Will Substitutes Enforceability Joint accounts
May lead to resulting trust

14. Probate Fees
Probate fees are low and are set by tariff based on the value of the Estate:
$10,000 or under = $25
$10,000-25,000 = $100
$25, ,000 = $200
$125, ,000 = $300
Over $250,000 = $400
Probate fees are set by R to the Judicature Act.

15. Paul W. Taylor, TEP Senior Associate ptaylor@blg
Paul W. Taylor, TEP Senior Associate Kathleen McDormand, TEP Partner