NELSON TEBBE, Brooklyn Law School
Email: nelson.tebbe@brooklaw.edu

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

DAVID R. NAVE, Pitcairn Financial Group, Montgomery County Community College - Central Campus
Email: d.nave@pitcairn.com

As we celebrate the golden anniversary of the S corporation, it is an appropriate time to check our "GPS" to provide a roadmap of trusts eligible to hold S corporation shares in 2008 and the potential "potholes" that are associated with these entities. This article examines the use of grantor trusts in S corporations with a detailed discussion of IDGTs and GRATs. It discusses and demonstrates potential planning opportunities using IDGTs and GRATs. It discusses the use of grantor charitable lead trusts and through a detailed example demonstrates how this strategy may achieve a shareholders philanthropic goals. A discussion of the issues with voting trusts and estates as shareholders. Finally a detailed discussion of QSSTs and ESBTs. The advantages and disadvantages of each. The use of a nongrantor charitable lead trust with an ESBT.

It has been fifty years since the enactment of Subchapter S. Numerous S corporations have been created and to some extent are still the entity of choice to family controlled businesses. Creative planning for the shareholders almost always involves the use of trusts. While we have come a long way in fifty years, we still have many "potholes" to avoid when using trusts in an S corporation.

The consequences of a trust not being an eligible shareholder can be significant. Not only will the trust be ineligible to hold S stock but the corporation's S election will terminate. Therefore, it is important for the tax advisor to turn on his "GPS" and navigate the road map of trusts as part of the planning process.

WENDY C. GERZOG, University of Baltimore - School of Law
Email: WGERZOG@UBMAIL.UBALT.EDU

The article discusses Holman, a recent Tax Court decision involving the valuation of gifts of FLP interests.

LIONEL SMITH, Quebec Research Centre of Private and Comparative Law
Email: lionel.smith@mcgill.ca

Sometimes trustees regret a decision they have made regarding trust assets, often because it has unforeseen taxation implications. This paper explores the legal techniques that may be available for undoing such a decision. This includes a discussion of the nature and limits of rectification, rescission, and the so-called "Rule in Re Hastings-Bass" that has featured in recent English litigation. The author argues that this so-called Rule is not an independent principle. Trustee decisions are reviewable on the basis of the limits of trustee powers and, separately, on the basis of trustees' fiduciary obligations, which require trustees to exercise their powers for appropriate purposes.

GARY A. ZWICK, Walter & Haverfield LLP
Email: gzwick@walterhav.com

One of the most effective estate planning tools is the irrevocable life insurance trust. The trust keeps the proceeds of life insurance out of the estate of the insured but in exchange, the insured must give up control over the life insurance policy. Most irrevocable insurance trusts need to last for many years both before the decedent dies and after. In that time, many things will change and the insurance trust should be drafted with as much flexibility as possible without causing inclusion of the trust in the estate of the insured. This article discussed some of the ways to make an irrevocable life insurance trust as flexible as possible so that the client will be comfortable committing to this effective planning idea.

KATHRYN CHAN, Benefic Law Corporation
Email: kchan@beneficgroup.com

For many years, the determination of which organizations should qualify for the significant tax benefits accorded to registered charities (organismes de bienfaisance enregistres) under the Canadian Income Tax Act (ITA) has been based, in all provinces, on the concept of charity developed by the English common law of charitable trusts. However, there are other sources of meaning for the concept of charity (bienfaisance) in Canada, including ancient civil-law sources that continue to form part of the basic law of Quebec. These diverse "charity-law" sources present a challenge for the registered charity scheme, and for the ongoing project of ensuring that federal laws are accessible to each of Canada's multiple legal and linguistic audiences.

This article challenges the prevailing view that there is only one source of meaning for the registered charity provisions. The author makes a number of assertions that contradict the longstanding unijural approach. First, the current interpretive approach to the registered charity provisions, and particularly the position that the ITA concept of charity is "uniform federal law," is at odds with statutory and constitutional principles, as well as Canada's policies on legislative bilingualism and bijuralism, and the explicit terms of sections 8.1 and 8.2 of the Interpretation Act. Second, there are at least four legal sources of meaning for the terms "charity" and "bienfaisance" in Canada: the common law of charitable trusts, the civil-law rules regarding legs pieux, the Roman laws on foundations and gifts, and the various provincial statutes governing the administration of charities. Third, although the ITA term "charitable" ("de bienfaisance") should likely continue to be given a common-law meaning in the common-law provinces, "de bienfaisance" is a problematic translation of the common-law term "charitable" because it is more consistent with another English term, "benevolent," which has consistently been held to fall outside the legal concept of charity. Fourth, where valid provincial legislation establishes a meaning for the term "charitable" or "de bienfaisance," that statutory meaning should generally be referred to in applying the ITA within that province.

Finally, the author asserts that in Quebec, there is no basis for interpreting the term "charitable" ("de bienfaisance") in accordance with the common law of charitable trusts, a body of private law (though admittedly one with public aspects) that has no application in that province. While Quebec's civil-law tradition has never developed a stringent or detailed conception of charity, the reception of the ancien droit from France did ensure that a wide variety of customary law sources on transfers for charitable purposes came to form part of Quebec law. Although these sources will require further study, they form part of the law of property and civil rights in Quebec, and therefore part of the default legislative dictionary applicable to federal legislation such as the ITA. The article concludes with some thoughts on various options for reform of the registered charity scheme.