Writing a Will

[troutman]

Originally Posted by VladtheImpaler

Correct me if I am wrong, as it has been years since I thought about this, but I believe if the "Estate" is the beneficiary of an insurance policy, the insurance proceeds are taxable income for the Estate and the Estate will have to pay tax on the proceeds. If you name an individual as the beneficiary, the proceeds are not considered income. Or am I old and confused?

Good questions - my tax lawyer colleague provided me some comments:

The insurance proceeds are not taxed as income, but any income/interest from the proceeds could be taxed.

Some insurance carriers can provide a trust for the proceeds in the policy, but there would presumably be higher fees for this than your own executor.

My colleague recommends as a protection when there is any chance of the estate having creditors, that the will contain a separate insurance trust.

I will see if I can get him to write a blog on this topic - interesting considerations. And our usual caveat - every fact situation is different, so do seek advice from your lawyers, accountants, financial planners and insurance agents.

[bizaro86]

Originally Posted by Manhattanboy

I think it is established that conditions in restraint of marriage generally or to a person of a particular faith would be void as against public policy. What if the testator really disliked his possible future son in law to the extent he is prepared to disinherit his daughter?

My -not a lawyer- understanding of that is that if you put,

"my daughter only gets 1/2 the money if she divorces her religion X husband"

then she gets the money anyway.

But I'm pretty sure you aren't obligated to give anyone money unless they're dependent on you. So if you had two adult independent children and decided to give your entire estate to one of them I think you're in the clear.

[troutman]

Originally Posted by bizaro86

But I'm pretty sure you aren't obligated to give anyone money unless they're dependent on you. So if you had two adult independent children and decided to give your entire estate to one of them I think you're in the clear.

http://disinherited.com/tataryn-lead...ation-case-bc/
https://www.cwilson.com/wills-variat...nadian-values/

In the leading WVA case, Tataryn v. Tataryn Estate, the Supreme Court of Canada noted that the general rule regarding independent adult children is that while their moral claim may be more tenuous than the claim of an under-age child or a spouse, some provision should be made for them by the testator in his or her will unless the size of the estate is too small, there is no compelling reason for that adult child to receive an inheritance or unless there are circumstances which negate the existence of a moral obligation to that adult child.

https://ablawg.ca/2011/07/14/it%E2%8...dult-children/

Important differences between the B.C. legislation being discussed in Tataryn – the Wills Variation Act, R.S.B.C. 1979, c. 435 – and the Alberta legislation, noting in particular that the Alberta legislation appears to place greater emphasis on the needs of the claimant.

https://www.lopatkalaw.ca/lopatka-la...family-members

[Manhattanboy]

Interesting thanks trout. My own situation involves possible conditional gifts to independent adult siblings. Nothing is easy these days lol.

[bizaro86]

Thanks troutman. Looks like folks in AB may be in the clear to disinherit non-disabled adult children... from the last link:

The Court in Re Birkenbach 2015 ABQB 3 considered whether Tataryn Estate does not apply to permit a non-disabled adult child to apply for family maintenance and support, with the Court decided that a non-disabled child is not entitled to make such an application and further notes that there are several decisions in Alberta which already have decided [Re Gray Estate, Re Willan Estate, Siegel v Siegel Estate].