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July 1, 2012

Family Business Succession, Estate Equalization and Wills Variation Act

 

When dealing with the estate planning of a family business it is particularly important to consider the issue of estate equalization.  One of the common objectives in a family business succession plan is to treat the children fairly and/or equally.  This can be problematic in that many family business owners see up to 80% or more of their wealth tied up in the family business.  The question arises, how to deal with the children who are not involved in the business when those children that are will receive the family company shares as their inheritance?  Aside from the issue of maintaining family harmony another risk of not dealing with this issue in an effective manner is the risk of court action under provincial legislation such as the Wills Variation Act.

While the Wills Variation Act is specific to British Columbia other provinces have similar legislation which calls for careful planning in dealing with the treatment of spouses and children in the will.  For example, if a business owner has three children, two of whom are involved in the business and one who is not, would the leaving of shares to the two involved pose a potential threat of litigation by the child who was not left what he or she felt was fair?  This could certainly be the case, especially if we look at the factors relevant to a parent’s moral obligations to an adult child in a recent BC Wills Variation Act action and articulated by the presiding judge.  In her reasons for judgement in the Wilson v. Lougheed case Madam Justice Ballance listed amongst other factors the following considerations:

  • Size of the estate
  • Reasonably held expectations of the claimant;
  • Standard of living of the testator and the claimant;
  • Financial need and other personal circumstances of the claimant.

 

It is easy to see that these factors could certainly be applied in the situation where family business shares have been left to one (or more) child while not being left to other children.  The question, then, is how do we allocate estate assets (the majority of which may be company shares) effectively in treating the children fairly?  For the children who are working in and managing the business it is far more beneficial to them not to have to report or answer to siblings who are not involved in that business.  For the non-business siblings other estate assets or cash could certainly be used as a substitute for company shares.  If other estate assets are used for this purpose, however, one must take into consideration the tax implications involved in this transaction and whether or not these assets are liquid enough to satisfy the needs of the beneficiary.  Often, a common method of obtaining estate equalization or fairness is through the use of life insurance, either on a single life or joint life second to die basis.

In using cash, specifically where that cash is created using the death proceeds of life insurance, the issue of the value of cash versus shares has to be dealt with.  Is there a need to provide cash to an heir who is not involved in the family business on a dollar to dollar basis?  In other words, if the value of the shares equal $500,000 should the sibling not involved in the business receive $500,000 in cash?  In my opinion, the answer is probably not.  The sibling who receives cash is free to do whatever he or she wishes and is not subject to the risk of business represented by the share ownership.  While the argument could be made that the non business sibling does not participate in growth of the business the truth is they assume none of the risk.  If all siblings were in agreement, however, the sibling who received cash and wished to take a more involved interest in the company could purchase shares from the other siblings and participate in growth – and assume risk – at a later date. I suppose one might ask what discount should there be for receiving cash in lieu of shares?  This is very subjective and a question which would require full discussion amongst all family members.

Of course, the above remarks are aimed specifically at operating businesses which have the usual management needs of most enterprises of that type.  In the situation where the family business in question is an investment company or a real estate holding company both of which generate income without the usual concerns of operational management the treatment could be different.   The investment or real estate holding company could almost be characterized as an annuity and often only the oversight of a single manager is required.  In this example it could be appropriate to divide the company shares amongst the family heirs in a manner which is consistent with the wishes of the testator without the need to substitute cash for shares for those family members not intimately involved in the running of the business.

Whichever form of family enterprise is the case, the testator should always be aware of the dangers of inequitable estate distribution, namely, the Wills Variation Act or other similar legislation.  Full communication is often the answer to all types of potential problems and risks in developing a business family estate plan.  When the family participates in full discussion directed at formulating an effective family business succession plan a lot of the potential risk, such as Wills Variation Act action or other litigation dissipates.

©iStockphoto.com/alexkopje

 

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