Successions and Donations Outline

Successions Notes Summary
Prof. Marilyn Puccini-Roy
 
I.1 625 heirs seized on death subject to liquidation of succession
777 liquidator has seizen
704 elements of will: 1) unilateral and revocable act; 2) only 1 person; 3) act of liberality of disposition; 4) formalities; 5) triggering event=death
706 cannot renounce right to revoke
619/738: all called are successors; once accept are heirs
 
I.2 three forms of wills: notarial; witness(English); 3) holograph
Larochelle: holograph will; can attach conditions so long as not contrary to public order; “give” sufficient to mean upon death
Veillieux: no will; failed under 714 as no testamentary intention; I.3 unclear who donee is, deficiency of form
R: will see that courts all over the place since 714
 
I.3 1806/1897: constitutent elements of gifts: gratuitous K; requires divesting; delivery dependent para 2 1807
Legacies and Gifts:  1) gratuitous; 2) capable actors; 3) susceptible of modalities; 4) hybrid form=mortis causa; 5) formal requirements; 6) liberalities=the principle that links the two
Substitution; a liberality/succession of ownership over a corridor of time; gift over
I.4 essentially a restricted ownership unless donor expands; otherwise, A has gamut of fiduciary duties
Re: trust – most wills include a trust that includes a clause that expressly states no intention to create a substitution
 
Trust: restricted 2 ranks revenue beneficiaries; 1 capital;
1260 gratuitous; 1264 trustee acceptance constitutes; 1268-70 purposes
1261 none of actors has any real right in the trust: sui generis; patrimony by appropriation to solve the
I.5 problem of where the ownership lies as civ does not have the c/l split of legal and beneficial ownership
See RB v.Tucker for SCC on sui generis ownership
3 types of trust: personal, private, social (see later III for extended discussion)
difference substitution and trust: beneficiary under substitution has real rights; under trust, no BUT borrowed the restricted number of ranks; trust can be onerous in that beneficiary can have obs
1262/1275 beneficiary or settlor cannot be trustee alone
most flexible of institutions as can customize: standard; spousal; discretionary; asset protection; living (not available in Quebec); gratuitous
 
I.7 Gifts Mortis Causa: 1808 conditional on death
In principle are null BUT 2 exceptions: 1) marriage K; 2) will
1841 are revocable unless otherwise stipulated (opposite of CCLC)
Trans Rule #106: the NEW CODE applies – often comes up with marriage Ks
In marriage K: institutional K and valid disposition; for donee: same as legatee=expectation at most; same recourses as for will; until death of donor has no rights
 
I.8 Bergeron: the RRSP debacle; gift in contemplation of death failed for lack of form; gift MC failed as not in will or marriage K, so despite fact son named as beneficiary on RRSP, Mum gets the lot as was named as universal legatee in the will 
Could not be a stipulation pour autrui as underlying K not valid as not under rules of insurance
[2379 assimilates annuities to insurance Ks
2446, 2450, 2455 allows for designation of beneficiary in insurance K=exceptions; legislation there also for supplemental pension plans; BUT NOTHING in CCQ for RRSPs (big omission? mistake?)]  
I.9 R: way around this is to put in a particular legacy re the RRSP naming the beneficiary, BUT tax problems = estate could get hit with the tax on capital under deemed disposition rules but still have to pay it out; SOLUTION: stipulation beneficiary pays tax 
SOLUTION: buy-sell agreement: create obligation that is irrevocable, that takes effect at time of K
I.10 Scotia Bank: name beneficiary, sign and witness by 2 witnesses, could be will under 714
Will=unilateral act; animus testandi
Gift=bilateral act; animus donandi
 
I.11 Liberalities: g