著名会计师（Tim Cestnick, FCPA, FCA, CPA(IL), CFP, TEP ）在环球邮报的发表的专栏文章：
There’s no shortage of stories about estate planning and estate administration gone wrong. A recent decision by a judge put to rest what amounted to years of problems experienced by a family around an estate. Let me share the story and the lessons.
资产规划和资产管理出了错的故事不乏其人。法官最近的一项判决，解决了多年来因为这个资产分配所造成的困扰。让我分享这个故事和教训。
事实 ：
In 1970, Mr. M signed a will that named his wife, Mrs. M, as executor, and left everything to her as long as she survived him. Failing this, half the estate was to go to Mr. M’s sister, and half to Mrs. M’s siblings. As it turns out, Mr. M’s sister predeceased him, so her share would go to her children – the nieces and nephews of Mr. M, in the event Mrs. M wasn’t around to inherit the estate.
1970年，M先生签署了一份遗嘱，将其妻子M太太任命为遗嘱执行人，将一切留给了她直至她去世。如果M太太去世了，一半的财产将归M先生的姐姐所有，另一半归M太太的兄弟姐妹所有。但事实上，M先生的姐姐却比M先生早去世了，因此，如果在M太太无法接受M先生的遗产时，M先生遗嘱中分配给M女士的遗产，将由M女士的孩子（M先生的侄女和侄子）得到。
In 1978, Mr. and Mrs. M separated, and never did reconcile. In their separation agreement, Mrs. M agreed that she would have no further claim on any property owned by Mr. M and that she’d renounce any right to the administration of his estate.
1978年，M夫妇分居，从未和解。 M太太在他们的分居协议中同意，她不会再对M先生拥有的任何财产提出索偿要求，并且她放弃了对其财产进行管理的任何权利。
In 2008, Mr. M died. At that time, Mrs. M signed a document renouncing her right to administration of the estate and acknowledging she had no claim on the assets of his estate. Since Mrs. M apparently had no claim to Mr. M’s estate and since Mr. M’s sister had already passed away, the nieces and nephews of Mr. M thought that they might have a right to his estate – but they weren’t sure because Mrs. M was still alive
M先生于2008年去世。当时，M太太签署了一份文件，放弃了她对遗产的管理权，并承认她对他的遗产资产没有索偿要求。很明显，由于M太太并没有要求M先生的遗产，并且M先生的姐姐已经去世，因此M先生的侄女和侄子认为他们可能有权获得M先生的遗产，但他们不确定，因为M太太还活着。
问题1
So the nieces and nephews sought clarity from the Court of Queen’s Bench of Saskatchewan as to whether the estate should be divided among the alternate beneficiaries (Mr. M’s nieces and nephews, and Mrs. M’s siblings), as though Mrs. M had predeceased her former husband, or whether it should be divided as though Mr. M died without a will (as an intestacy).
因此，M先生的侄女和侄子向萨斯喀彻温省女王法院寻求明晰的有关该财产是否应在候补受益人（M先生的侄女和侄子，以及MM太太的兄弟姐妹）之间分配的信息，比如说M太太已去世，或者是否应像M先生在没有遗嘱的情况下去世而分配遗产。
The judge said that it wasn’t that simple. There are court cases from around Canada to the effect that a separation agreement does not revoke a will, which would suggest that Mrs. M should inherit the entire estate. Not only that, Mrs. M was still the executor. Yet, the judge also wanted to ensure that the nieces and nephews benefited under the will. In the end, a mediated settlement was reached and the parties agreed that Mr. M’s estate should be divided 55 per cent to Mrs. M, and 45 per cent to the nieces and nephews.
法官说不是那么简单的。来自加拿大各地的法院案件表明，分居协议不会撤销遗嘱，这表明M太太应该继承整个遗产。不仅如此，M夫人仍然是遗嘱执行人。但是，法官还希望确保侄女和侄子在遗嘱中受惠。最终，双方达成了和解，双方同意将M先生的遗产55％分配给M太太，45％分配给侄女和侄儿。
The lessons to be learned here are twofold: First, if you ever separate or divorce, prepare a new will because your old will is not revoked. If Mr. M had done this, he could have revised his beneficiaries to exclude Mrs. M if that was his intention.
这里要汲取的教训是双重的：首先，如果您分居或离婚，请准备新的遗嘱，因为您的旧遗嘱不会被撤销。如果M先生做了新的遗嘱的话，他可能会修改他的受益人，而且可能受益人不包括M太太。
Second, if you sign a separation agreement, get legal advice on waiving your right to your former spouse’s estate. In this story, Mrs. M’s renouncing of this right didn’t actually achieve that result. So this type of provision in an agreement may not be effective.
其次，如果您签署了分居协议，请就放弃对前任配偶财产的权利去寻求法律咨询。在这个故事中，M太太放弃这项权利实际上并没有取得她所想要的结果。因此，协议中的此类规定可能无效。
问题2
After Mr. M’s death, Mrs. M remained the executor and hired an accountant to calculate the taxes owing from Mr. M’s death. She was told that the taxes would be $25,000. So she distributed to the nieces and nephews their share of the estate, but held back $25,000 to pay the taxman.
M先生去世后，M夫人仍然是遗嘱执行人，并聘请了一名会计师来计算M先生去世所欠的税款。她被告知税额为25,000元。因此，她向侄女和侄儿分配了他们的遗产，但扣留了25,000元以支付税额。
The problem? It turns out that the taxes and fees were actually $60,772. So Mrs. M went back to the nieces and nephews and asked for money back to pay their share of the taxes, interest and fees owing ($4,720 each), to which they said “no."
问题来了，原来，这些税费实际上是60,772元。因此，M太太回到侄女和侄儿那里，要求他们还钱以偿还所欠的税款，利息和费用（每人4,720元），他们说“不”。
Mrs. M wanted the court to provide a summary judgment that would see the other beneficiaries sharing the tax burden and fees with her. In a decision handed down on Dec. 3, 2019, the judge sided with the other beneficiaries.
M太太希望法院提供简要判决，以使其他受益人与她分担税收负担和费用。在2019年12月3日作出的一项裁决中，法官否决了M太太的要求。
Section 159 of our tax law places the liability for the tax bill on the executor(s), not the beneficiaries, and requires the executor to obtain a “clearance certificate” from the Canada Revenue Agency. A clearance certificate certifies that taxes that can be reasonably expected to be owing have been paid or that security has been provided to CRA. Mrs. M hadn’t obtained a clearance certificate before distributing the assets of the estate.
我们的税法第159条是将税单的责任放在遗嘱执行人而非受益人身上，并要求遗嘱执行人从加拿大税务局获得“清算证书”。清算证书证明应缴的合理的遗产税款已经支付了，或已向CRA提供担保。 M太太在分配遗产之前没有获得“清算证书”。
The tax law doesn’t address whether the beneficiaries need to indemnify the executor for the amount owing, but the judge ruled that the beneficiaries are not obligated this way.
税法并没有阐述受益人是否需要赔偿欠遗嘱执行人的款项，但法官裁定受益人没有这种义务。
The lesson here? If you’re an executor, be sure to get a clearance certificate before making a final distribution to the beneficiaries. You might also speak to a lawyer about the idea of entering an agreement with the beneficiaries that they will indemnify you against any tax liability that might arise later.
这里的教训是：如果您是遗嘱执行人，在最终把遗产分配给受益人之前，请先务必获得“清算证书”。您还应与律师谈谈与受益人达成协议的想法，即受益人将向您赔偿以后可能产生的任何税收责任。
www.theglobeandmail.com
There’s no shortage of stories about estate planning and estate administration gone wrong. A recent decision by a judge put to rest what amounted to years of problems experienced by a family around an estate. Let me share the story and the lessons.
资产规划和资产管理出了错的故事不乏其人。法官最近的一项判决，解决了多年来因为这个资产分配所造成的困扰。让我分享这个故事和教训。
事实 ：
In 1970, Mr. M signed a will that named his wife, Mrs. M, as executor, and left everything to her as long as she survived him. Failing this, half the estate was to go to Mr. M’s sister, and half to Mrs. M’s siblings. As it turns out, Mr. M’s sister predeceased him, so her share would go to her children – the nieces and nephews of Mr. M, in the event Mrs. M wasn’t around to inherit the estate.
1970年，M先生签署了一份遗嘱，将其妻子M太太任命为遗嘱执行人，将一切留给了她直至她去世。如果M太太去世了，一半的财产将归M先生的姐姐所有，另一半归M太太的兄弟姐妹所有。但事实上，M先生的姐姐却比M先生早去世了，因此，如果在M太太无法接受M先生的遗产时，M先生遗嘱中分配给M女士的遗产，将由M女士的孩子（M先生的侄女和侄子）得到。
In 1978, Mr. and Mrs. M separated, and never did reconcile. In their separation agreement, Mrs. M agreed that she would have no further claim on any property owned by Mr. M and that she’d renounce any right to the administration of his estate.
1978年，M夫妇分居，从未和解。 M太太在他们的分居协议中同意，她不会再对M先生拥有的任何财产提出索偿要求，并且她放弃了对其财产进行管理的任何权利。
In 2008, Mr. M died. At that time, Mrs. M signed a document renouncing her right to administration of the estate and acknowledging she had no claim on the assets of his estate. Since Mrs. M apparently had no claim to Mr. M’s estate and since Mr. M’s sister had already passed away, the nieces and nephews of Mr. M thought that they might have a right to his estate – but they weren’t sure because Mrs. M was still alive
M先生于2008年去世。当时，M太太签署了一份文件，放弃了她对遗产的管理权，并承认她对他的遗产资产没有索偿要求。很明显，由于M太太并没有要求M先生的遗产，并且M先生的姐姐已经去世，因此M先生的侄女和侄子认为他们可能有权获得M先生的遗产，但他们不确定，因为M太太还活着。
问题1
So the nieces and nephews sought clarity from the Court of Queen’s Bench of Saskatchewan as to whether the estate should be divided among the alternate beneficiaries (Mr. M’s nieces and nephews, and Mrs. M’s siblings), as though Mrs. M had predeceased her former husband, or whether it should be divided as though Mr. M died without a will (as an intestacy).
因此，M先生的侄女和侄子向萨斯喀彻温省女王法院寻求明晰的有关该财产是否应在候补受益人（M先生的侄女和侄子，以及MM太太的兄弟姐妹）之间分配的信息，比如说M太太已去世，或者是否应像M先生在没有遗嘱的情况下去世而分配遗产。
The judge said that it wasn’t that simple. There are court cases from around Canada to the effect that a separation agreement does not revoke a will, which would suggest that Mrs. M should inherit the entire estate. Not only that, Mrs. M was still the executor. Yet, the judge also wanted to ensure that the nieces and nephews benefited under the will. In the end, a mediated settlement was reached and the parties agreed that Mr. M’s estate should be divided 55 per cent to Mrs. M, and 45 per cent to the nieces and nephews.
法官说不是那么简单的。来自加拿大各地的法院案件表明，分居协议不会撤销遗嘱，这表明M太太应该继承整个遗产。不仅如此，M夫人仍然是遗嘱执行人。但是，法官还希望确保侄女和侄子在遗嘱中受惠。最终，双方达成了和解，双方同意将M先生的遗产55％分配给M太太，45％分配给侄女和侄儿。
The lessons to be learned here are twofold: First, if you ever separate or divorce, prepare a new will because your old will is not revoked. If Mr. M had done this, he could have revised his beneficiaries to exclude Mrs. M if that was his intention.
这里要汲取的教训是双重的：首先，如果您分居或离婚，请准备新的遗嘱，因为您的旧遗嘱不会被撤销。如果M先生做了新的遗嘱的话，他可能会修改他的受益人，而且可能受益人不包括M太太。
Second, if you sign a separation agreement, get legal advice on waiving your right to your former spouse’s estate. In this story, Mrs. M’s renouncing of this right didn’t actually achieve that result. So this type of provision in an agreement may not be effective.
其次，如果您签署了分居协议，请就放弃对前任配偶财产的权利去寻求法律咨询。在这个故事中，M太太放弃这项权利实际上并没有取得她所想要的结果。因此，协议中的此类规定可能无效。
问题2
After Mr. M’s death, Mrs. M remained the executor and hired an accountant to calculate the taxes owing from Mr. M’s death. She was told that the taxes would be $25,000. So she distributed to the nieces and nephews their share of the estate, but held back $25,000 to pay the taxman.
M先生去世后，M夫人仍然是遗嘱执行人，并聘请了一名会计师来计算M先生去世所欠的税款。她被告知税额为25,000元。因此，她向侄女和侄儿分配了他们的遗产，但扣留了25,000元以支付税额。
The problem? It turns out that the taxes and fees were actually $60,772. So Mrs. M went back to the nieces and nephews and asked for money back to pay their share of the taxes, interest and fees owing ($4,720 each), to which they said “no."
问题来了，原来，这些税费实际上是60,772元。因此，M太太回到侄女和侄儿那里，要求他们还钱以偿还所欠的税款，利息和费用（每人4,720元），他们说“不”。
Mrs. M wanted the court to provide a summary judgment that would see the other beneficiaries sharing the tax burden and fees with her. In a decision handed down on Dec. 3, 2019, the judge sided with the other beneficiaries.
M太太希望法院提供简要判决，以使其他受益人与她分担税收负担和费用。在2019年12月3日作出的一项裁决中，法官否决了M太太的要求。
Section 159 of our tax law places the liability for the tax bill on the executor(s), not the beneficiaries, and requires the executor to obtain a “clearance certificate” from the Canada Revenue Agency. A clearance certificate certifies that taxes that can be reasonably expected to be owing have been paid or that security has been provided to CRA. Mrs. M hadn’t obtained a clearance certificate before distributing the assets of the estate.
我们的税法第159条是将税单的责任放在遗嘱执行人而非受益人身上，并要求遗嘱执行人从加拿大税务局获得“清算证书”。清算证书证明应缴的合理的遗产税款已经支付了，或已向CRA提供担保。 M太太在分配遗产之前没有获得“清算证书”。
The tax law doesn’t address whether the beneficiaries need to indemnify the executor for the amount owing, but the judge ruled that the beneficiaries are not obligated this way.
税法并没有阐述受益人是否需要赔偿欠遗嘱执行人的款项，但法官裁定受益人没有这种义务。
The lesson here? If you’re an executor, be sure to get a clearance certificate before making a final distribution to the beneficiaries. You might also speak to a lawyer about the idea of entering an agreement with the beneficiaries that they will indemnify you against any tax liability that might arise later.
这里的教训是：如果您是遗嘱执行人，在最终把遗产分配给受益人之前，请先务必获得“清算证书”。您还应与律师谈谈与受益人达成协议的想法，即受益人将向您赔偿以后可能产生的任何税收责任。
Estate mess comes with lessons for the rest of us
A recent decision by a judge put to rest what amounted to years of problems experienced by a family around an estate
www.theglobeandmail.com
