disclaimer

The Commissioner of Taxation denied a claimed loss carryforward of a trust which had declared a distribution of all its income for a particular year, as a result of which there was a substantial increase in the amount of the of income to be included in her hands. Over seven years later, she executed a purported disclaimer of her right to that distribution.

The taxpayer, who had tax debts on his death, made an "informal" disclaimer of his beneficial interest under the estate of his wife five days prior to her death (which was found to be invalid because the common law required that a disclaimer be made after the death of the legator) and, three years after her death, made a formal disclaimer. The formal disclaimer was found to operate as a surrender and release, rather than a disclaimer, because his conduct subsequent to her death was inconsistent with a disclaimer.

An estate unsuccessfully argued that the effect of the settlement of some estate litigation pursuant to a consent order, which provided for the transfer of the interest in the deceased's RRSPs, by the children who otherwise would have received the RRSP assets, to the deceased's surviving spouse, was to retroactively access the rollover for RRSP transfers to a surviving spouse. In connection with noting that the children had not disclaimed their interests in the RRSPs, V. Miller J stated (at para.