Gifting Farm Property: A Tax-Driven Strategy
Ian Keay
February 10, 2026
When you want to keep the farm in the family.
The Rollover Provision
The Income Tax Act (Canada) (the “ITA”) provides special rollover rules for farmers when transferring property. “Qualified farm property” can be transferred by the farmer to a child on a tax-deferred basis, either during the farmer’s lifetime or on death. Subsection 73(3) of the ITA permits a rollover of qualified farm property to a child at the parent’s cost base rather than at fair market value provided specific conditions are met. These conditions include:
1. the property is situated in Canada;
2. the child receiving the property is a resident of Canada immediately before the transfer; and,
3. the property was used principally in a farming business in which the farmer, their spouse, their child, or their parent was actively engaged on a regular and continuous basis (See Section 73(3) ITA; see also CRA, Intergenerational Transfers of Farm Property, RC4060).
When these conditions are satisfied, the transfer does not trigger an immediate capital gain for the farmer and the child receives the property with the same adjusted cost base as the farmer.
So how can a farmer use this rollover provision under the ITA when developing their estate plan?
Ex. The farmer wants to leave the farm to the child who is actively farming. In an effort to equalize between the farmer-child the non-farmer-child, the farmer could sever land from the farm and rely on Subsection 73(3) to convey the severed lot to the non-farmer-child at the farmer’s cost base. This is typically done in an effort to make up for the fact that (A) the farm land is valuable, and (2) the farm land will be bequeathed to the farmer-child.
The advantages of the Section 73(3) rollover are significant. From the farmer’s perspective, the transfer can be completed without incurring immediate income tax. From the child’s perspective, the land is received without having to pay fair market value. Given current land values, this strategy can be very valuable.
Be Careful: The Anti-Avoidance Rule
One important consideration: the anti-avoidance rule found at Subsection 69(11) of the ITA. The non-farmer-child cannot sell the severed lot within 3-years of the transfer. Otherwise, the farmer must pay retroactive income tax at fair market value that would be assessed in the year of transfer.
This rollover provision is a useful tool for farm succession planning. It is assistive when trying to keep farmland within the family, minimizing tax exposure and equalizing between farming/non-farming children. It is important to involve a tax-professional early on when attempting to develop a meaningful estate plan.
- Ian Keay
In Ontario, ODSP recipients are generally not permitted to hold more than $40,000 in non-exempt assets without risking their benefit qualification. As a result, receiving an inheritance—especially an unexpected one—can be stressful and confusing. Many recipients are left wondering whether the inheritance will reduce or interrupt their ODSP support. When families don’t know whether their intended-beneficiary collects ODSP or not, it can lead to the preparation of a Will that includes no planning to structure the gift properly-to protect the recipient's qualification for ODSP benefits. When that happens, the recipient (or, if they are incapable, their legally appointed representative) must consider whether there are ways to protect the intended beneficiary’s qualification. The ODSP $40,000 asset limit applies to non-exempt property and funds. However, certain exempt assets are not counted when determining ODSP eligibility. If an inheritance is not planned properly, a recipient who wants to remain eligible can consider whether enough of the inheritance can be transferred into exempt assets. This would mean that their non-exempt total stays within the allowable $40,000 limit. Examples of exempt assets under ODSP include: An interest in a principal residence One motor vehicle Funds held in a Registered Disability Savings Plan (RDSP) A trust created by the ODSP recipient using inherited funds, provided the trust capital does not exceed $100,000 A pre-paid funeral Household goods and furnishings required for the reasonable enjoyment of a home There are a number of planning tools available to skillful Wills practitioners to assist in protecting a beneficiary’s entitlement to ODSP - a prime example is a Henson Trust. If you are preparing your Will and you have a family member collecting ODSP benefits, getting good advice early is crucial. - Ian Keay
Ontario’s Will validation rules are meant to prevent unfair outcomes where a person clearly intended a document to be their final Will, but the signing formalities weren’t perfect. However, there are limits — especially when the only “Will” is an unsigned draft that exists as a digital document only. A recent Ontario case, Madhani v. Fast, 2025 ONSC 4100, is a reminder that an unsigned electronic draft generally cannot be validated under Ontario law. The common scenario: lawyer takes instructions to draft a Will for Client lawyer prepares draft Will a signing appointment is booked the client dies before the Will is signed Will was not printed out - it exists in digital form only In Madhani , the draft Will was never printed and never executed. The draft existed only as an electronic file. Can the Court “validate” the draft anyway? Ontario’s validating provision is found at Section 21.1 of the Succession Law Reform Act (“ SLRA ”). Section 21.1 allows the Court to validate a document that does not comply with execution formalities provided it reflects the deceased’s testamentary intentions. In Madhani , the Court held Section 21.1 cannot be used to validate a Will that exists only in electronic form. Why not? Another piece of Ontario legislation, the Electronic Commerce Act, 2000 (“ ECA ”) explicitly limits the Court’s validating power. Section 31 of the ECA excludes Wills from electronic recognition. Section 21.1(2) of the SLRA explicitly makes Will validation subject to the exclusion under Section 31 of the ECA. In short: Ontario law still requires a physical testamentary document for validation to even be possible. Testamentary intention still matters Nevermind the “electronic draft” problem, which is significant on its own. There must also be evidence before the Court that supports that the digital draft was a valid reflection of the deceased Client’s fixed and final intention. Did the Client read the final draft? Did the Client sign the final draft? What evidence can be produced that shows what was drafted is an accurate reflection of the Client's "fixed and final intention"? Ontario courts often use the “deliberate, fixed and final intention” test drawn from George v. Daily, 1997 CanLII 17825 (MB CA). In Madhani , the draft Will was to be reviewed and confirmed at the signing meeting — only the signing meeting never happened – which means no evidence could be produced to decide whether the draft Will reflected the deceased Client’s fixed and final intention. The Court was not reasonably satisfied in Madhani . How this differs from other validation cases Ontario courts have validated Wills with execution defects where the document was physical and clearly authentic, for example: Cruz v. Public Guardian and Trustee , 2023 ONSC 3629 Vojska v. Ostrowski , 2023 ONSC 3894 But those cases involved paper documents that were physically present and clearly connected to the deceased’s fixed and final intention. Practical takeaways The Madhani case is a caution for both lawyers and families: print important drafts (especially when a signing meeting is imminent) try to obtain direct confirmation from the client (not only through intermediaries) digital drafts on devices may not be legally usable as Wills in Ontario Bottom line Madhani confirms that Ontario’s Will validation paradigm under Section 21.1 SLRA is helpful — but it is not a workaround for electronic-only drafts. Until legislation changes, a Will must exist in physical form before Ontario’s courts can consider validating the unsigned draft under SLRA s. 21.1.
When a loved one collects government benefits, there is a risk that receipt of an inheritance could result in disqualification. Families want their loved one to live a safe, comfortable life—without accidentally causing the loss of vital government benefits. In Ontario, an effective legal tool for protecting a disabled loved one is by including a Henson Trust in the Will. 1. When Helping is Actually Hurting Many people with disabilities receive government support, such as: i. ODSP (Ontario Disability Support Program) ii. Subsidized housing supports iii. Prescription / medical benefits (the “ Benefits ”) Qualification for and receipt of the Benefits are often based on the applicant’s financial eligibility. In simple terms: If the applicant has too much money / resources / assets in their own name, they may not qualify / lose access to the Benefits. So how do family members (often parents) leave an inheritance for their disabled loved one? A badly drafted Will can result in an inheritance that risks the recipient's disqualification from the Benefits. 2. A Solution: The Henson Trust A Henson Trust is a special type of trust purposefully designed to help a person with a disability receive financial support without owning the assets personally. A Henson Trust provision is written directly into a Last Will & Testament. A key feature of a Henson Trust is that it is a fully discretionary trust. The Will-drafter (parent) appoints the trustee of the Henson Trust in their Will. The parent also identifies the beneficiary (disabled child). The important concept for a Henson Trust is that the trustee has sole and absolute discretion: i. whether to make payments to the beneficiary ii. how much or how little to pay or whether to make a payment at all iii. when to pay iv. what the money can be used for The beneficiary does not have the legal power to demand the money. The trustee has total authority over the Henson Trust. The term “fully discretionary” references that it is the trustee that has total discretion in all decisions surrounding payments out of the trust to the beneficiary. 3. How Does a Henson Trust Protect Access to the Benefits? When a Will includes a Henson Trust clause, it requires the inheritance to be set aside for the disabled beneficiary. The "setting aside" is what prevents the disqualification. This is because the fully discretionary nature of the Henson Trust means whatever inheritance lands inside the Henson Trust can never be considered to be owned by the disabled beneficiary: i. The trust owns the inherited assets ii. The trustee controls the inherited assets iii. The beneficiary receives only whatever help from the trust that the trustee decides in their sole discretion Only once a payment is made from the trust to the beneficiary does the beneficiary own that property, but only in the amount of the payment that is actually advanced. The goal of the Henson Trust is to ensure the trustee only makes payments in amounts that keep the disabled beneficiary qualified. 4. The Trustee – Tell Me More These are the important considerations when creating the Henson Trust. In particular, who should be named as the trustee. Factors to consider are: i. The trustee is in charge of the disabled child’s inheritance ii. The trustee will: a. manage the money b. make investments c. keep statements / records d. ensure the rules governing the Benefits are not breached during the management of the Henson Trust iii. Who should be trustee? a. a sibling b. a trusted family member c. a trusted friend d. a trust company e. a lawyer f. an accountant iv. Should I appoint multiple trustees? 5. How is a Henson Trust Created? In this context, a Henson Trust is created in a Will. If parents have a disabled child who collects ODSP, then the parents make an appointment with their lawyer to draft their Wills. In the Will, the lawyer prepares a clause that causes the share of the estate destined for the disabled child to be placed in the Henson Trust rather than go directly to the disabled child. By doing so, the parent is taking the correct steps to protect their disabled child’s qualification for their Benefits. 6. Important Considerations i. ODSP in particular has rules about income / gifts received during a disabled person’s qualification – not following the rules will result in disqualification ii. Whomever is appointed trustee must be reliable – a poorly managed Henson Trust can result in all kinds of different problems, not the least of which is disqualification from the Benefits iii. Registered Disability Savings Plan (RDSP) is an investment that could be used by the Trustee – but is not typically used instead of a Henson Trust iv. If a person has a family member who: a. receives ODSP (or might in the future) b. is or could be financially vulnerable (i.e. susceptible to influence or exploitation) c. makes poor / questionable financial decisions d. requires support then a Henson Trust may make sense in those circumstances. 7. Final Thoughts on Henson Trusts A Henson Trust is about more than the money. It’s created by someone who wants to provide an inheritance to a vulnerable person in order to: i. preserve dignity ii. provide stability iii. provide necessary supports iv. avoid interruption of government supports v. ensure that the support provided endures for years and decades The best time to set up a Henson Trust is before the crisis occurs – you do not want to die and leave your executors / beneficiaries scrambling. A well-crafted estate plan will protect both your estate assets and your vulnerable loved one. - Ian Keay