eLaw - Property & Succession Update | November 2017 - No. 89

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Property & Succession Update November 2017
In This Issue
Order Imposing Deferral of Reduction in Assessed Value Reinstated: MBCA
Low Threshold for Declarations Revoking Insurance Beneficiary Designations: MBQB
 Financial Need Must be Proven Not Presumed: MBCA   
Other Estates Cases
Land Titles and Personal Property Registry Changes: Notices and Directives
Law Reform Commission Report
Input on Medical Assistance In Dying: CBA
New Guidelines for Residential Mortgage Underwriting: OSFI
Changes to Principal Residence Exemption
Recommended Reading
Continuing Professional Development: LSM
Winter Replays: LSM
MBA Programs
2018 Mid-Winter Conference: MBA
STEP Programs

Order Imposing Deferral of Reduction in Assessed Value Reinstated: MBCA

In Boeing Canada Operations Ltd v Winnipeg (City) Assessor, 2017 MBCA 83, the Court of Appeal overturned a reviewing judge’s decision quashing orders of the Board of Revision imposing a one-year deferral of a reduction in the assessed value of property for failure to reply to requests for information from the assessor. The reviewing judge found that the Board had erred in granting the orders because the assessor had breached Boeing’s right to procedural fairness by sending the request for information to the property owner, but not to Boeing, who paid the taxes on the property under their lease. The Court of Appeal disagreed with the finding that the assessor’s process was unfair, noting that the assessor had followed the guidelines for a fair procedure for obtaining information outlined in the Licharson case. According to the court, imposing an obligation on the assessor to serve persons other than the property owner would re-introduce the type of uncertainty into the complex assessment and deferral process that Licharson was intended to resolve.

Low Threshold for Declarations Revoking Insurance Beneficiary Designations: MBQB

Two beneficiaries designated under the deceased’s group life insurance policy were unsuccessful in challenging the validity of a contrary designation in a subsequently executed will in The Manufacturers Life Insurance Company v. Bendera et al, 2017 MBQB 162. The policy beneficiaries argued that the designation in the will did not overwrite the policy designation since  it was not sufficiently specific to fall within the definition of a “declaration” in The Insurance Act (it did not specifically identify the contract (policy) or describe the life insurance or the insurance fund as required). After examining conflicting case law on the issue the court found that Manitoba favours “an approach in which a court will excuse the lack of detail in a designation so long as the designation is in writing, is signed by the insured, references the notion of insurance, and, in the circumstances of the case, demonstrates a clear intention to designate beneficiaries in respect of the referenced insurance.” (para. 30) In the court’s opinion:

where the courts in this province have historically waived strict adherence to the requirements set out in the definition of the word “declaration” in order to give effect to a deceased person’s clear and final intention, a court should construe strictly the wording in an insurance policy that restricts the manner in which a beneficiary designation can be changed.  The objective should be, where possible, to give effect to a deceased person’s final intention…(F)orm requirements of the insurer should not trump the intention of the deceased unless the policy wording is very clear so that an insured knows that his/her revocation privileges have been severely limited. (para. 46)

Financial Need Must be Proven Not Presumed: MBCA   

In McAuley v Genaille, 2017 MBCA 69, the court overturned a lower court decision ordering the estate of the mother of a “dependant” child to advance a monthly amount for the child’s support to the father until the age of 18 (conditional on repayment from an insurance trust vesting when the child turned 21). After reviewing the history of The Dependants Relief Act and the relief regimes in other Canadian jurisdictions, the court concluded that Manitoba’s needs-based approach is unique and that threshold eligibility for relief is assessed solely on the dependant’s financial need. Given the father’s refusal to provide financial evidence, the trial judge erred in finding that the child was in financial need within the meaning of the Act, said the court, and in ordering support and future reimbursement from the trust. The court also discusses the treatment of future and extra expenses in DRA cases (paras. 59-63) and cost considerations in dependants relief litigation (paras. 82-88).

Other Estates Cases

Re Estate of Rose May Hazlitt, 2017 MBQB 184 - insufficient evidence as to the deceased’s mental state when instructions were given for a codicil and power of attorney or when they were signed prevented the applicants from establishing either undue influence or lack of capacity. The court dismissed their challenge to the validity of both documents, but did order that one of respondents be removed as power of attorney and executor, and that he repay the estate for improperly taken loans. In addition, both putative executors were ordered to provide an accounting of their activities.

The Estate of Jean Horban, 2017 MBQB 165 – delay, the executrix’s clear failure to understand her role, and a lack of evidence were all complicating factors in the passing of accounts in this modest estate.

Land Titles and Personal Property Registry Changes: Notices and Directives

New deposit account top-up option – this notice describes a new feature for land titles deposit accounts, a top up service.

Electronic copies of status of title and status of instrument – this directive indicates that, effective November 6, 2017, statuses of title and statuses of instrument will be delivered electronically to all clients who have registered their firm details with Land Titles.

Approval of updated tax transmission form (version PR6.1) - an updated version of the tax transmission (version PR6.1) form has been approved and is available for download.

Updated Transfer Smart Form - an updated version of the electronic Transfer (version e5.1) form has been approved and is available for download from The Property Registry’s website at: http://www.tprmb.ca/tpr/land_titles/lto_offices/eforms.html. Use of all land titles smart forms, including the Transfer e5.1 form, will become mandatory on December 17, 2017.

Document Seals - all seals affixed to a document submitted for registration at land titles, whether corporate, notarial or otherwise, must be visible once the document has been scanned. In the future, either rubber and ink seals or embossed seals with wafers should be used.

RG Directive on new fees for the Land Titles and Personal Property Registries - fee changes for the Land Titles and Personal Property Registries come into effect on January 7, 2018. Revised fee tables for each registry are available at http://www.tprmb.ca/tpr/rg_directives/2018_fees_for_the_Land_Titles_and_Personal_Property_Registies.pdf.

eRegistration Information - The new land titles electronic registration system is coming soon! More information about eRegistration is available at eReginfo.ca.

Law Reform Commission Report

The Manitoba Law Reform Commission report, Updating the Administration of Small Estates in Manitoba, considers possible amendments to improve the legislation and procedure related to the summary administration of small estates under The Surrogate Practice Act.  The primary area addressed is whether the monetary jurisdiction should be increased. The report considers what other Canadian jurisdictions have done to address this issue and makes provisional recommendations for reform in Manitoba.

Input on Medical Assistance In Dying: CBA

The CBA’s End-of-Life Working Group has provided input on aspects of medical assistance in dying left unanswered in the legislation to the expert panel considering these issues. Their comments elaborate on three policies developed in 2016 (dealing with mature minors, mental illness, and advance requests) and identify directions for the panel’s research.

New Guidelines for Residential Mortgage Underwriting: OSFI

The Office of the Superintendent of Financial Institutions Canada (OSFI) published the final version of Guideline B-20 − Residential Mortgage Underwriting Practices and Procedures, on October 17, 2017.  The guideline, which comes into effect January 1, 2018, applies to all federally regulated financial institutions. The changes reinforce the need for lenders to be vigilant in their mortgage underwriting practices, setting a new minimum qualifying rate (stress test) for uninsured mortgages and restricting transactions designed to circumvent enhanced loan-to-value measurements and limits.

Changes to Principal Residence Exemption

Real estate practitioners are reminded that, starting with the 2016 tax year (generally due by late April 2017), anyone selling a principal residence is required to report basic information (date of acquisition, proceeds of disposition and description of the property) on their income tax and benefit returns in order to claim the full principal residence exemption. As this was not required in the past, clients should be advised of the change. See the Government of Canada website for further details.  

Recommended Reading

Is There an Easier Way for Municipalities to Subdivide Land? – this MLT Aikins article outlines the process for “friendly expropriations” under s. 13 of The Expropriation Act.

The realities of aging – this Canadian Lawyer article discusses Legal Capacity, Decision-making and Guardianship, a recent report by the Law Commission of Ontario on elder law issues and its application to other jurisdictions, including Manitoba.

BCSC Considers The Organizing Principle Of Good Faith In The Context Of Lawyer's Approval Clauses – this McCarthy Tétrault blog post discusses Zhang v. Amaral-Gurgel, 2017 BCSC 1651, a recent BC decision offering insight into the application of the principle of good faith in the context of lawyer’s approval clauses in contracts of purchase and sale.

Continuing Professional Development: LSM

Hot Topics in Wills and Estates  - a third and final date has been added to address demand for this program. Presenters Eleanor Wiebe, Q.C. and Caroline Kiva will discuss a wide range of topics, including the recent Rule 74 amendments, estate planning issues with US vacation property, powers of attorney, and recent case law. The program will be held December 7, 2017, from 9:00 to noon in the Law Society classroom. Registrants will receive a copy of the 2d edition of Drafting Wills in Canada: A Lawyer’s Practical Guide.

Winter Replays: LSM

For those who missed the earlier live presentations (or those who still need cpd hours), the Law Society has posted its list of winter replay offerings. Programs which may be of interest to solicitors include: Land Titles eRegistration & Electronic Funds Transfer and Land Titles eForms 101 (offered November 22, 2017); Changes to Probate QBR (December 4, 2017); Mortgage Sale and Foreclosure (December 11, 2017); Estate Litigation and Administration and 10th Annual Hot Topics In Real Estate (both offered December 15, 2017); Costs In Estate Litigation (January 8, 2018); and Hot Topics in Wills and Estates (January 12, 2018); as well as several practice management or general interest sessions.

MBA Programs

Property assessment and taxation in The City of Winnipeg - representatives from the City's Legal and Assessment department will discuss what real property conveyancers need to know in advising clients with respect to property taxation matters at this upcoming Real Property section meeting. It will be held in the Pitblado LLP boardroom, from 5:00-6:30 pm on November 23, 2017.

Project Management? Practice Management! – the Civil Litigation section is hosting this program comparing project management to practice management and discussing the tools you must have for the latter. The program will be held in the 2nd floor conference room, 444 St. Mary Ave., from noon to 1:30 pm on November 30, 2017.

Basic Will Drafting: Tips and Challenges – presenters Chantal Lovatt and Annika Friesen of Fillmore Riley LLP will discuss basic will drafting at this lunch session on December 14, 2017. The program will be held in the 2nd floor conference room, 444 St. Mary Avenue, from noon to 1:30 pm.

2018 Mid-Winter Conference: MBA

Mark your calendars for the MBA’s 2018 Mid-Winter Conference, which will take place January 18-19, 2018 at the Fairmont Hotel.  Continuing professional development sessions of interest to solicitors include: Mines and Minerals; Ethical and Legal Considerations When Seeking Disclosure of a Lawyer’s File in Estate Litigation; and Technology Skills Every Lawyer Should Master.

STEP Programs

Upcoming educational sessions offered by the Winnipeg branch of the Society of Trust and Estate Practitioners (STEP) include: Topics in Real Estate: Land Transfer Tax in Manitoba (November 21, 2017); “If CRA Comes Knocking” (December 12, 2017); and US Tax Update (January 16, 2018). In addition, STEP Canada is hosting a webcast, July 18th Tax Proposals Q & A, on November 24, 2017; and a full day course, Taxation at Death and Post Mortem Planning, on February 1, 2018.. To register, or for information on how to become a member of STEP, check their website.

ISSN 1916-3916

 

You are receiving this email in accordance with the Law Society's mandate to uphold and protect the public interest in the delivery of legal services with competence, integrity and independence and to further your opportunities to ensure compliance with the mandatory continuing professional development requirements set out in Law Society Rule 2.81.1(8).

www.lawsociety.mb.ca/publications/elaw
The Law Society of Manitoba
219 Kennedy St
Winnipeg MB R3C 1S8