On the death of Y, his co-ownership interest in shares held with his spouse (X) passed to a spousal trust for her following the settling of the estate. Before describing the application of the s. 248(21) or (20) rules to a partition and consolidation of the shares if the co-ownership interests therein had first been transferred to the spousal trust, CRA indicated that s. 70(6) could not apply if the partition of the shares was effected between X and the estate before the transfer of divided shares to the spousal trust, stating:
[T]he property held by Y prior to his death, i.e. the undivided interest in shares, would not be the same property as the property received by the spousal trust in connection with the partition effected by the Estate, i.e. shares.