Alberta (Attorney-General) v. Cowan

Alberta (Attorney-General) v. Cowan

For the purposes of s.6 of the Succession Duties Act, 'possession' requires beneficiaries to have possession as contrasted with the donor; mere legal attribution of the donor's physical possession to beneficiaries via a declaration of trust does not satisfy s.6, so succession duty is payable.

Citation
[1926] SCR 142
Parties
Appellant (defendant): The Attorney General of Alberta; Respondents (plaintiffs): Thomas George Cowan and others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 November 1925
Procedural Posture
Appeal / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Alberta (stated Case)
Outcome
Appeal allowed; judgment of the Appellate Division reversed.
Legal Topics
Possession by Beneficiaries, Declaration of Trust, Succession Duties Act S.6, Bearer Negotiable Instruments
Source Language
English
Trust Succession Duties Property Law Taxation Possession by Beneficiaries Declaration of Trust Succession Duties Act S.6 Bearer Negotiable Instruments

Case Brief

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Parties

The Attorney General of Alberta

Appellant (defendant)

Thomas George Cowan and others

Respondents (plaintiffs)

Procedural Posture

Appeal / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Alberta (stated Case)

Legal Issues

  1. 1 Whether beneficiaries had 'possession' under s.6 of the Succession Duties Act when the donor retained physical possession as trustee
  2. 2 Whether retention of possession by the donor defeats exemption under s.6

Ratio Decidendi

For the purposes of s.6 of the Succession Duties Act, 'possession' requires beneficiaries to have possession as contrasted with the donor; mere legal attribution of the donor's physical possession to beneficiaries via a declaration of trust does not satisfy s.6, so succession duty is payable.

Court Disposition

Appeal allowed; judgment of the Appellate Division reversed.

Orders

  • Appeal allowed
  • Judgment of the Appellate Division of the Supreme Court of Alberta reversed