Would the s. 73 rollover on a transfer of capital property to a Quebec trust comply with s. 73(1.02)(b)(ii) be jeopardized if the trust deed provides that the settlor may by will designate related persons to become beneficiaries (in specified shares) upon death? CRA responded that by virtue of such a clause:
The settlor is no longer, after the transfer, the one and only person beneficially interested within the meaning of subsection 248(25) and, consequently … there would be an effective change of ownership for the purposes of subsection 73(1.02).
…[T]he presence of a similar clause in a trust indenture that would be governed by the common law would result in an effective change of ownership at the time of the transfer of property by the settlor to the trust.