Skip to main content

Understanding a Henson Trust in Manitoba for People with Disabilities

By Committeeship, Estates, Power of Attorney, Wills

Navigating the complexities of estate planning and ensuring financial security for loved ones with disabilities can be a daunting task. In Manitoba, one effective tool that people look at for its flexibility and protective benefits is the Henson Trust. This post aims to shed light on Henson Trusts, detailing their setup, operation, and associated risks to help Manitobans make informed decisions and help you consider if seeing a Winnipeg lawyer for the Henson Trust is the right way to help you plan.

What is a Henson Trust?

A Henson Trust, named after the landmark legal case that established its framework, is a unique type of trust designed to benefit individuals with disabilities (in this case, the “beneficiary”). It is a discretionary trust, meaning that the trustee has full control over if, when, and how the trust’s assets are distributed to the beneficiary. The primary goal of a Henson Trust is to provide financial support to a person with disabilities without affecting their eligibility for government assistance programs, such as the EIA or Manitoba Housing. This is because the assets held in a Henson Trust are not considered part of the beneficiary’s assets.

Setting Up a Henson Trust

Establishing a Henson Trust in Manitoba requires careful planning and adherence to specific legal requirements. The process typically begins with consulting a lawyer experienced in estate planning and trusts. The settlor, who is the person creating the trust, must draft a trust deed or will that explicitly states the trust’s discretionary nature. This document should appoint a trustee or trustees, outline the trust’s terms, and specify the beneficiary or beneficiaries. Choosing a reliable and trustworthy trustee is crucial, as they will have significant control over the trust’s administration and the welfare of the beneficiary.

Operating a Henson Trust

Once a Henson Trust is in effect, its operation hinges on the discretion of the trustee. The key part of a Henson Trust is that no one can require that the trustee pay any of the money to the beneficiary – that is how it avoids being included in the beneficiary’s assets. The trustee is responsible for managing the trust’s assets, making investment decisions, and deciding on the distribution of funds to the beneficiary. They must act in the best interest of the beneficiary, taking into account the beneficiary’s needs, government benefit eligibility, and the trust’s long-term sustainability. Trustees have the flexibility to disburse funds for a wide range of expenses, including living costs, medical care, education, and leisure activities, ensuring the beneficiary’s quality of life is maintained or enhanced.

Risks Associated with Henson Trusts

While Henson Trusts offer numerous benefits, they are not without risks. One significant risk is the possibility of the trustee choosing not to disburse any funds, especially if they are also the residual beneficiary of the trust. This scenario can occur if the trustee, motivated by self-interest, decides to preserve the trust’s assets for themselves rather than using them for the beneficiary’s needs. To guard against this risk, it is essential to choose a trustee who is trustworthy and has the beneficiary’s best interests at heart. Additionally, you can appoint more than one trustee or a professional trust company to ensure checks and balances are in place.

In conclusion, Henson Trusts offer a valuable estate planning tool for families wishing to provide for loved ones with disabilities, ensuring their financial security without compromising their access to government assistance. However, the success of a Henson Trust lies in its careful setup, the integrity and diligence of the trustee(s), and the ongoing management of its assets. By understanding the benefits and potential risks, Manitobans can make informed decisions that align with their estate planning goals, ensuring peace of mind and the well-being of their loved ones.

Henson Trust meeting

Important Items to Bring to Your Lawyer Appointment for Drafting a Will and Power of Attorney

By Estates
Wills consultation

Drafting a will and power of attorney (POA) are significant steps in managing your estate and ensuring your wishes are honored. When you’re preparing for an appointment with your lawyer to discuss these documents, it’s essential to come prepared. Here’s a good guide to help you make the most of your visit.

1. Identification and Basic Information

– Photo ID: Bring a government-issued photo ID such as a driver’s license or passport. This helps the lawyer verify your identity.
– Contact Information: Your address, phone number, and email are crucial for communication and official documentation.

 

2. Family Details and Beneficiary Information

– Spouse/Partner and Children’s Details: Names, birthdates, and social security numbers of your spouse and children (if applicable).
– Other Beneficiaries: Information about anyone else you wish to include in your will, like friends or charities.
– Guardian Designations: If you have minor children, consider who you would want as their guardian.

 

3. Financial Documentation

– Asset List: A detailed list of your assets, including real estate, bank accounts, investments, and valuable personal property.
– Debt Information: Details of any debts or liabilities, like mortgages or personal loans.
– Insurance Policies: Life insurance, disability insurance, and any other relevant policies.
– Retirement Accounts: Information on RRSPs, TFSAs, or other retirement plans.
– Business Ownership Documents: If you own a business, bring relevant documents like partnership agreements.

 

4. Legal Documents

– Existing Legal Documents: Previous wills or POAs, divorce decrees, prenuptial agreements, or any other relevant legal papers.
– Healthcare Directives: If you have existing healthcare directives, bring them for review.

 

5. Details for Power of Attorney

– POA Candidate Information: Names and contact details of the person or people you want to designate as your attorney-in-fact.
– Scope of Authority: Consider the powers you wish to grant, such as financial decisions, healthcare decisions, or both.
– Duration and Conditions: Decide when the POA should come into effect and any specific conditions or limitations.

 

6. Digital Assets

– List of Digital Assets: Include online bank accounts, social media accounts, digital currencies, and any other relevant digital assets.
– Access Information: Don’t bring your passwords, but be prepared to discuss how someone in charge of your affairs may be able to access your digital assets.

 

7. Personal Wishes and Instructions

– Specific Bequests: Instructions for specific items or sums of money to be left to certain individuals or organizations.
– Anything else that you would like the lawyer to discuss adding to your documents.

 

8. Questions and Concerns

– List of Questions: Prepare any questions or concerns you have regarding the will and POA process.

 

9. Open Mind and Readiness to Discuss Sensitive Topics

– Mental Preparation: Be ready to discuss sensitive topics like end-of-life wishes, family dynamics, and financial matters.

 Conclusion

Preparing a will and power of attorney is a thoughtful process that requires careful consideration. By bringing the necessary items and information to your lawyer appointment, you can ensure that your estate planning is comprehensive and aligns with your wishes. Remember, these documents are not just about distributing your assets; they’re about peace of mind and the security of knowing your affairs are in order, even in unforeseen circumstances.

This preparation not only facilitates a smoother process but also provides a clearer understanding of your estate, potentially revealing opportunities for financial planning and family discussions.

In summary, taking the time to gather these essential items and information before your appointment can make the process of drafting a will and power of attorney both efficient and effective, ultimately providing you and your loved ones with security and clarity for the future.

Can you sue over shared nude photos?

By Family law, Litigation
The distribution of nude photos, legally known as intimate images, without consent is a distressing and violating experience. If you’re currently facing this situation, it’s only natural to feel betrayed, devastated, and uncertain about what steps to take to protect your privacy. So, can you sue for the nonconsensual distribution of intimate images in Canada? The clear and comforting answer is, absolutely, yes.


Consent Is Key


In the context of privacy laws, consent is paramount. Everyone has a right to control how, when, and where their personal information, including intimate images, is shared. Spreading intimate images without consent is not only ethically reprehensible, it’s also illegal in Canada. This form of so-called ‘revenge porn’ can have severe emotional, psychological, and social impacts on victims.

The Criminal Part


In 2014, Canada enacted Bill C-13, otherwise known as the Protecting Canadians from Online Crime Act. This bill criminalized the non-consensual distribution of intimate images. Punishable under the Canadian Criminal Code, individuals found guilty could face up to five years in prison.
While criminal charges can give a sense of justice to victims, they may not address the emotional damage and personal trauma inflicted by such violations. Here is where the Canadian civil law can step in, allowing victims to seek damages—both compensatory and punitive—to help mitigate the aftermath of the nonconsensual distribution of intimate images. The Government’s page on it can be found here.

Constructing a Civil Case


In the civil context, the tort of ‘Intrusion Upon Seclusion,’ confirmed by the Ontario Court of Appeal in Jones v. Tsige (2012), plays a critical role. Although this case didn’t involve intimate images, it set a precedent by recognizing the claim for damages under instances of invasion of privacy. More recently, the Ontario Superior Court extended this tort to create a new one: ‘Public Disclosure of Embarrassing Private Facts.’ In Doe 464533 v. N.D. (2016), the claimant sought and was initially awarded damages in total of $141,708.03 after a default judgment for the nonconsensual distribution of intimate images, when the defendant refused to participate in the Court process (the default judgment was subsequently set aside after a motion by the defendant). Manitoba has passed specific legislation called The Intimate Image Protection Act that lays out specifically some of the supports available to people who have had their intimate images shared. It also sets out how those people can sue the ones who distributed them.
You don’t need to prove that there was any damage and it’s important to remember that you do not lose the right to sue just because you consented to the images being made at the time. 

Seeking Legal Help

If you find yourself in this heartrending situation, please know that you’re not alone. The emotional toll from these events can be overwhelming, and having an advocate to lean on during this time can be incredibly comforting. Most importantly, they will help ensure the legal process serves your best interest.Remember, laws are there to protect you. With your lawyer’s help, you can fight for your right to privacy, seek the justice you deserve, and take important steps toward healing.

Final Thoughts

In the face of such intimate violation, you might feel vulnerable and powerless. But rest assured, Canadian and Manitoba laws give you the right to fight back against the nonconsensual distribution of private images. This issue, and the harm it brings, is taken very seriously. With the right legal guidance, you can bring this to the court, seeking compensation for your suffering and, more importantly, reclaiming your sense of control and dignity.In closing, please remember two important facts – you are not alone, and you are not powerless. You have the law on your side, and we are here and willing to help you find your way through this challenging time.

Why should I incorporate my business?

By Commercial

Incorporating your business can be an important step in your business development. Incorporation gives
you a number of benefits that may make running your business easier and more secure. These include
reducing liability, reducing taxes, and being eligible for government grants and tax credits.

Reducing Liability

Reducing liability means that, as a shareholder and director of your corporation, you are not personally
responsible for the debts of the corporation. If something goes wrong in your business and someone
sues you for damages–or if creditors try to collect debts from the corporation–they cannot go after your
assets or personal income; they can only go after what's in the company bank account (except in certain
situations).

Reduced Risk

In addition to limiting personal liability, incorporating also reduces risk because it can give companies
access to certain grants, larger loans and tax credits when they need it most: during times when growth
seems impossible due to lack of capital; or when competition is fierce due primarily to larger companies
having deeper pockets than smaller ones do.

Reducing Taxes

Another benefit of incorporation is that it allows you to reduce your tax burden. Corporate tax rates are
lower than personal income tax rates in Canada, so incorporating can help you save money on your
taxes by allowing the company to pay less than what you would have had to pay if you were an
employee.

Income Splitting

Income splitting is a tax-saving strategy that allows you to transfer income to family members who are
in lower tax brackets. This can be done by making payments or giving property to your immediate family
(parent, child, or sibling), or by transferring shares of your corporation's capital stock to them. Your
spouse or common-law partner must have been living with you for the entire year and have been a
resident of Canada for income tax purposes.

Capital Gains Exemption

One of the primary benefits of incorporation is the ability to take advantage of capital gains exemptions.
In most provinces, if you sell a business that has been operating for at least two years and does not have
any inventory or real estate holdings, then you can avoid paying some or all of the taxes on your profits
from selling it. This exemption is not available to sole proprietorships or partnerships; only corporations
are eligible for this type of tax break.
If you want to use this exemption while selling your company in order to avoid paying taxes on its sale
price (and thus keep more money), there are some requirements:

  • The corporation must have been established at least two years prior to its sale date;
  • 50% of the corporation’s assets must be used in active business operations during those two years; and
  • 90% of the corporation’s assets must be used in active business operations at the time thecorporation is sold.

Perpetual life of the corporation

Another important benefit of incorporation is that it allows a business to continue to exist after its
founders have died.

A corporation has perpetual life, which means that it will live on even if all shareholders die or sell their
shares. This can be very useful in situations where there are multiple people owning shares in a
company and one of them dies without leaving instructions for how his or her portion should be
handled upon death.

Funding Eligibility and Tax Credits

If you’re looking to secure funding, incorporating can be a great way to increase your chances. Some
government programs are limited to corporations and partnerships. If you want to apply for these, you'll
need to incorporate first.

For example, if you want to apply for a Small Business Venture Capital Tax Credit from the Manitoba
Government, which provides for up to a 45% tax credit, then you have to incorporate; this is because
only Canadian Controlled Private Corporations, among other criteria, are eligible.

Finally

If you are looking to incorporate your business, the reasons above are some of the most important.
Incorporation can be an important step in your business development, and it can attract investors and
allow for additional government support. If you have any questions, please contact our office, and ask to
speak to a member of our Corporate Team.

8 Considerations When Making a Will For Your Blended Family (Including Mutual Wills)

By Estates, Wills

Preparation for a secure future is a fundamental responsibility towards your loved ones. It might appear daunting, especially in the case of blended families, but understanding the process can significantly reduce the burden. Here are eight crucial considerations for creating a will for your blended family, highlighting the importance of mutual wills:

1. Children’s Inheritance

Equal distribution is the foundation of harmony. A will ensures a fair inheritance amongst all your children, irrespective of whether they are part of your current or previous relationships. What is “fair” though is as individual as you are. You’re going to need to discuss that with your spouse or partner. Make sure that your discussions include topics like how an inheritance might work with step-children, as well as what happens if a step-parent outlives a biological parent. This can be the one of the more challenging topics, but it’s among the most important.

2. Providing for Your Spouse

The financial well-being of your spouse is another critical aspect. A well-structured will takes their future needs into consideration, ensuring sustenance and comfort even in your absence. It will also need to consider what happens depending on who goes first.

3. Guardianship of Minors

If there are minor children in your care, determine who’d be best suited to assume guardianship. Although this may be a difficult discussion, it is essential for the welfare of your children. Remember that, if your minor child has another living parent, that other parent will likely have the exclusive right to care for the children. While that’s not always the case, it’s something to consider.

4. Personal Possessions

Family heirlooms, sentimental gifts, or any item of personal significance requires careful consideration. Be explicit in your will to alleviate any unnecessary distress or disputes later.

5. Setting Up Trusts

Trusts are an excellent way to safeguard your children’s future financial well-being without overwhelming them with a significant amount at once—particularly beneficial for minor children or those not yet prepared for financial responsibility.

6. Considering a Mutual Will

A mutual will, sometimes called contractual wills, is a binding agreement between two people, typically spouses, to carry forward mutual promises even after one partner passes. This agreement’s serious nature obligates the survivor to uphold and respect the departed’s wishes, providing additional security for your family. Courts will usually uphold this type of will, if drafted correctly, even if the surviving spouse changes their will after the death of the other spouse. It can be hard to think that this might be an issue, but wills are about piece of mind and serious consideration should be given to exploring this as a possible option.

7. Open Communication

Maintaining transparency with your family about your will’s contents is vital. It not only eliminates confusion but also prevents potential disputes in the future. These discussions will absolutely involve your spouse or partner, but in many families discussing these issues with the (adult) children can help give clarity not only to them, but to you too.

8. Professional Legal Advice

Professional guidance could prove invaluable during this process. Legal advisors ensure each aspect of your will is addressed appropriately, helping you draft a comprehensive document that accurately reflects your wishes.

Creating this legacy for your blended family—through a well-planned will—does not have to be a challenging process. Remember, professional help is just a call away. Reach out to us at any time; we’re here to support you every step of the way.

Choosing an Executor for Your Will: Top 5 Things to Consider

By Estates, Power of Attorney, Wills

Creating a will is a bit like planning a neighbourhood gathering — you’re figuring out who gets what (picture the potluck dishes) and ensuring things run smoothly. And just like you’ need a coordinator for the party, you need to pick an executor for your will.

Your executor is like the captain of your post-life team, steering your affairs in the direction you wish. So, let’s stroll together through the top 5 things to consider when choosing your own will executor.

1. Trustworthiness

Just like you wouldn’t hand your house keys to someone you don’t trust, you shouldn’t select an executor you don’t have faith in. After all, they’ll be taking care of distributing your assets according to your wishes. Make sure the person you select is known for their integrity and honesty.

2. Organizational Skills

Handling a will involves a lot of paperwork and deadlines. Your chosen executor should be someone who’s good with details, timelines, and, let’s face it, a bit of bureaucracy.

3. Communication Skills

You’d want someone who knows how to diplomatically deal with Uncle Bob arguing over your famous lemon pie recipe, right? Much in the same way, your executor should bravely and tactfully handle any family conflicts that might pop up.

4. Availability and Location

Consider choosing an executor who is relatively local to you. This is very much like choosing a neighbour to water your plants while you’re gone. Having someone close-by can make the process smoother and faster, since they’ll easily attend to necessary paperwork and meetings. If you’re considering someone who lives outside of Manitoba, talk to us about that – there may be considerations ranging from the practical to the expensive (from a tax standpoint) that we’ll want to talk about.

5. Professional Assistance

Lastly, know that your executor can hire professionals to help, like us, your friendly neighbourhood lawyers. Any fees for legal assistance come out of the estate, not your executor’s pocket.

 

Choosing an executor is a critical step in creating your will. It’s all about making sure someone you trust has got things under control, just like the trustworthy neighbour you’d leave a spare key with. Remember, at Wolseley Law, we’re here to help navigate these decisions with you. Come and chat with us about your options.

Crafting a Will in Manitoba: A Step-by-Step Walkthrough

By Estates, Power of Attorney, Wills

We get it, the thought of sitting down to craft a will isn’t exactly a walk in the park. But when it comes to safeguarding the future of your loved ones and your hard-earned assets, it’s absolutely worth it.

Allow us to guide you through the steps to creating a will in Manitoba – we promise, it’s less complicated than you think!

Step 1: Get Started (Don’t worry, we’re here with you!)

First things first, take a deep breath. Understand that you’re taking a crucial step towards ensuring security for your loved ones. Now grab a pen, some paper, and let’s gather a list mentioning all your assets (like your house, car, savings, investments) and personal items of real or sentimental value (items of jewellery, art, or even your well-cared-for houseplants!). We’ll send you an intake form to start thinking about these things, if you’d like.

Step 2: Choose the Beneficiaries

Next, think about who you want to pass these assets onto. These folks are known as your beneficiaries. They can be anyone you wish – your kids, other family members, friends, even a good cause that you feel deeply about.

Step 3: Name Your Executor

Now, choose a trusty person to carry out the terms of your will. This is your executor, (kind of like that reliable friend you’d nominate to water your plants while you’re away). This should ideally be someone you trust, who’s organized and impartial. See our hints on choosing an executor, here.

Step 4: Guardianship Decisions

If you have children under 18, it’s crucial to think about who you’d like to take on guardianship duties should something happen to you. If you have kids this is likely the main reason you’re making a will, so this decision needs careful thought and plenty of discussions with potential guardians.

Step 5: Create the Will

Ready to get going? Great! We’ll meet with you to take instructions from you regarding what you might want in your will. We’ll have lots of questions for you, but if you’ve done a little light prep work we won’t be asking anything that you won’t already know the answer to. It’s a conversation, not a quiz!

Step 6: Sign and Witness

In order for a will to be legally valid in Canada, it must be signed in the presence of two adult witnesses, who aren’t beneficiaries or the spouse of a beneficiary. Typically that’s two people from our office who are there to make sure that the witnessing complies with the law around wills.

Step 7: Keep it Safe

Lastly, we’ll send you home with your will. Find a safe and secure place to store your will where your executor can access it when needed. Make sure to tell your executor where you’ve kept it. This is often just a secure spot in your house.

And voila! You’ve successfully crafted a will. Remember, setting up a solid will is all about making things as easy as possible for your family and friends – let us help make that process a little easier for you.