A U.S. resident (the “grantor”) settles a “revocable living trust” with property including taxable Canadian property. The grantor: is the sole trustee; until death is the sole beneficiary with rights to income and any encroachments of capital; and may revoke the trust at any time. The trust provisions may provide for a distribution of the trust property to named beneficiaries upon the death of the grantor. Would a Canadian resident who is a remainder beneficiary be considered to have “acquired” the capital interest from the decedent at a cost equal to its fair market value immediately prior to the death of the grantor?
CRA indicated that the capital interest of the remainder beneficiary would have been acquired as a consequence of the terms of the trust and not as a consequence of the death of the settlor, so that s. 70(5)(b) would not apply to determine the adjusted cost base of the remainder beneficiary’s capital interest in the trust.