New Year’s Resolution: Insurance

Posted on December 30, 2014 by Maria Holman

It’s that time of year, in case you hadn’t noticed.  The last of the turkey leftovers have made their appearance, cleverly disguised in a “pot pie”.  New Year’s plans are under-way (mine include staying up until at least 11 PM on new year’s eve) and the pressure is on to make a resolution or two.

Well, here is one to think about.  Resolve to get adequately insured!

What brings that on, you ask?  Here’s what.  This morning in the paper, front and centre, was a very sad article about a young woman, single mom, whose car had been stolen.  Guess what?  Some bright spark of a car sales man had advised her not to bother with comprehensive insurance (that’s the kind that includes theft coverage, among other things) to save a few bucks.  Now I appreciate that saving a few dollars at this time of year might have seemed like a good idea;  I mean, what’s the worst that could happen, right?

This is what:

The car was stolen, used for a joy-ride by some brain-dead twerps, including a robbery and property damage, not just to the car, but to other people’s property.  The car is now in police hands, who will tow it and store it.  Guess who gets to pay for all of that?   Not the insurance company, because, well, there was no insurance.  So this poor young woman, who got some really bad advice about saving a few bucks, will get to shell out money she doesn’t have.  [Since this was first published, some kind-hearted people have offered her money, a new car, and replacements for the kids’ car seats that were also lost].

Every year at this time you hear about a house that burned down because the Christmas tree caught fire, or someone fell asleep on the couch with a lit cigarette.  As if that isn’t bad enough, there is always the added heartbreak that they lost everything and didn’t have insurance.

What does any of this have to do with wills and estates?  Just like a reluctance to buy adequate car or house insurance, a lot of people don’t think it’s important to have life insurance, disability insurance, or critical illness insurance.

Yes, insurance companies get a bad rap, and rightly so.  They are truly at the bottom of the barrel when it comes to customer satisfaction, and they seem to go out of their way to confirm people’s cynicism about them.  The recent examples of people losing their life savings because they thought they were covered for medical issues, only to have the insurer weasel out under a technicality, certainly don’t help.

But seriously, folks, what will happen to your family if you suddenly drop out of the picture?  Will they be able to afford to even bury you?  Who is going to pay the mortgage? (and I’m not suggesting you buy your mortgage company’s insurance, that’s just a bad deal…get some real life insurance).  What happens to you if you get really sick and can’t work?  Is EI really going to cut it?

You may be fortunate enough to have a good plan at work.  If you do, take a look at the policy so you know what you are covered for, and what isn’t covered.  If you aren’t sure, ask.

If you don’t have insurance at work, ask around to find a good insurance rep or two.  Ask a ton of questions.  You’ll need to talk to a few people, because different companies sell different types of insurance.  But do it.  Make a resolution to find out what you need and then get it.  Before it’s too late and you find yourself wishing you had.

Happy New Year!

Posted in Estates, Law | Tagged , , | Leave a comment

When in Rome….

Posted on December 1, 2014 by Maria Holman

Ever dreamed of owning a little pied-a-terre in Paris or Provence, or fixing up an old farmhouse overlooking the vineyards in Italy? Maybe you have inherited such a place from relatives who still live in the “old country.”

Canadians of European descent who have close ties with the country of their ancestors might be aware that most countries in Europe have fixed rules about who may inherit an estate. When it comes to real estate (“immovables”), the forced heirship rules of the country where the property is located will apply, no matter what your Will says about it.

The good news is that in most of the European Union, that will change as of August 17, 2015, due to EU regulation 650/2012, otherwise known as Brussels IV.   I’ll just refer to it as the “Regulation.”

After August 17th 2015, a Canadian who has immovables in a participating EU country can choose either the law of the country of their habitual residence (which is defined in the Regulation, sort of), or the law of their nationality to govern the devolution of their EU estate, provided they have taken appropriate action before their death. Appropriate action would be to make a designation in their Will as to which law should apply to the immovable in question.

The only EU countries not participating in the changes brought about by the Regulation are the UK, Ireland and Denmark, which have opted out. If you own immovable property there, you should, of course, seek appropriate legal advice about the laws of succession in the relevant country.

If no choice of law designation is made, the default position is that the succession of the EU immovable property will be governed by the country of their habitual residence. This could have serious negative consequences for a Canadian living or working abroad.

As an example, the estate of a Canadian living or working in the Hague who does not amend her Will (whether it is a Canadian or Dutch Will) may find that the apartment she purchased in Paris is subject to forced heirship under Dutch law.

The Regulation requires that appropriate action be taken during the lifetime of the owner of the European real property. That means making a nomination in a Will which is valid in the EU country where the property is situated, stating which law will apply to their real estate. For that reason it is vitally important, for those who own real property in the EU, to determine if their Canadian-made Will would be valid in the country where the property is located, and if it is not, to ensure that a Will dealing with that property is made in the relevant country.

Although the Regulation does not come into effect until August 2015, if you are the owner of EU immovable property, you should consider amending your Will now in anticipation of it coming into effect, because if you wait, and become unable to make the amendment later, your existing Will applies.  If that Will has no choice of law provision, then it will be ineffective in disposing of the EU property and forced-heirship of the relevant country will apply.

However, a nomination made now has no effect until next August, so please do obtain advice from a specialist in international succession and probate law, either here in Canada or in the country where you reside and/or own land, about what would happen if you died in the interim.

There are of course many other considerations when owning real property in a foreign jurisdiction, including tax laws and non-succession related estate matters. We can put you in touch with the appropriate advisers if you have any questions about estate planning for foreign assets.

Posted in Estates, Law | Tagged , , , | Leave a comment

How does the new Wills Estates and Succession Act affect your estate planning? 

Posted on April 3, 2014 by Maria Holman

Effective March 31, 2014, British Columbians have a new set of laws that govern both the making of Wills and the management of an estate after a person dies.  The Wills Estates and Succession Act (the “WESA”) and the new rules of court govern estate administration and estate disputes, and contain some fundamental changes that both clarify and complicate these matters.

Most importantly, under the WESA there are some significant changes for the spouses of those who die without a Will (“intestacy”). The impact is greatest on those in second or subsequent marriages, where there are children of prior relationships and the assets of the couple are not jointly owned.  Whereas under the old law, the spouse automatically got a life estate in the family home, that is no longer the case. This is either very good or very negative, depending on whose perspective is being viewed.

The whole question of whether the rules of intestacy work for you is easily remedied, of course. Just ensure there is an up-to-date Will in place.

Why the emphasis on an up-to-date Will?  It has nothing to do with the WESA, because existing Wills remain valid, though they will be probated under the new rules.  The fact is, though, that many people, even if they have a Will, made it so long ago that it no longer really works.  By “works” I mean that a Will is meant to determine who gets the estate, who manages it, and how it is to be managed and distributed. Maybe the Will is so old that key people have died, marriages have broken up or the kids are adults who no longer need guardians.  Maybe those kids have turned out to have significant needs or issues.  Probably tax planning for the current reality was not on the radar.  In any of those cases, it is time to revisit the plan.  Having an inadequate Will may be as bad as having no Will!

I routinely meet with people who have finally decided that their 25 year old Wills no longer “work.” They made them when their kids were young, and haven’t looked at them since.

The problem is often just getting to the planning stage;  it seems like an overwhelming job so people put it off, sometimes until it is too late.  Getting that process started is very important.  The planning that goes into making a Will can lead to decisions about lowering taxes, life insurance (to pay those taxes), the use of joint ownership, creating trusts for family members with special needs or who may not be good with money, and other beneficial strategies. The best plan is to get someone with expertise in these matters to get the ball rolling and help you sort it out.

People who ignore the need to plan for the future lose the opportunity to avoid the problems created by dying without a Will or with an inadequately planned Will.  Why would anyone miss out on that opportunity? If you have the chance to have your say about what happens after your death, and at the same time ensure your family and heirs are properly provided for, shouldn’t you take it?

The bottom line is, the WESA does not change the need for having a well-planned Will, but it does give us a clear view of what happens if you don’t.  And it’s not a pretty sight.

Posted in Law | Tagged , , , , , , , , , , , , | 1 Comment

New Probate and Administration Proceedure in BC

Posted on March 14, 2014 by Maria Holman

Heads up Executors, there’s a new law in town.

If you are in charge of looking after the estate of someone who has recently died in British Columbia (or even someone who died a while ago, but the estate has not yet been administered) here is what you need to know.

The Wills, Estates and Succession Act of British Columbia (WESA) is coming into effect March 31, 2014.  Along with it, the Rules of Court are changing.  The WESA sets out how to get a Representation Grant (probate, with a Will, administration without a Will), and the Rules of Court provide the forms that must be used.

The WESA also has new provisions for small estates, but those won’t come into effect yet.

The WESA makes significant changes about who gets notice, and when notice must be given.  For example, whereas previously the applicant could mail the notices to the beneficiaries on the same day she filed the application for probate, there is now a requirement that notices be sent 21 days prior to filing.  Other significant changes include the fact that the applicant for administration no longer needs to clear off other potential administrators.  The presumption of the need for a bond is also gone, unless there are beneficiaries who are minor children or mentally incompetent.

Anyone who has recently tried to pry information out of a financial institution in order to be able to apply for a Representation Grant will be pleased to know that financial institutions (eg, banks) now have 30 days to comply.  If they don’t, the applicant can get a court order for the information, and costs of the application.

The dispute process has also changed significantly.  For example, a caveat is now called a Dispute Notice, and any and all actions in connection with the estate will be under the same court file.  Previously if someone wanted to sue in an estate matter, they would have to start a new action, instead of just proceeding under the probate application.  That includes disputes about the validity of the will, applications for Wills Variation, and claims against the estate under Family Law.

If the application is filed by March 31, 2014, then the old forms will apply;  if after March 31, then the new forms must be used.

Most of the forms now have “check boxes”, which is meant to make it easier for non-lawyers to file applications.  Looking at these form, though, they are still not easy to navigate, and we expect that most people without legal training in the area of wills and estates will want the guidance of someone who does have such expertise.

If you need to apply for a Representation Grant (either probate or administration) and have questions or concerns about these coming changes, please don’t hesitate to contact me.

Posted in Law | Leave a comment

Does your Living Will actually work?

Posted on February 5, 2014 by Maria Holman

As the recent BCSC decision in the Margot Bentley case demonstrates (Bentley v. Maplewood Seniors Care Society 2014 BCSC 165 many Living Wills or Representation Agreements currently in place in British Columbia probably do not do everything people expect them to do. In fact, the case casts doubt on whether it is even possible to give specific care directions that will be honoured in every circumstance.

For those unaware of this case, Mrs. Bentley, who during her working life was a nurse, and understood what advanced Alzheimer’s disease looks like, wanted to ensure that if she ever reached that point she would not be kept alive. She wrote a “Statement of Wishes”, which directed that no artificial means be taken to prolong her life. She went so far as to add a wish that she be euthanized.

After she herself was diagnosed with Alzheimer’s, a second “living will” was found. It is not clear whether that second document was actually signed by Mrs. Bentley or if it was a forgery (as was alleged). However, this second document contained a statement that she would accept “basic care” but no “artificial means” or tube feeding. It appears to be the standard boiler-plate “living will” that has been circulating via the internet and elsewhere for a long time, and is often signed without much (if any) discussion between the individual and their legal adviser.

In the meantime, Mrs. Bentley is at stage 7 Alzheimer’s, and is being spoon fed.  She usually, though not always, accepts food when a spoon is placed next to her mouth.  Her family want that stopped, saying it is merely a reflex;  the health care providers refuse to do so.

In court, arguments were made that the Statement of Wishes should qualify as a Representation Agreement, appointing two people as alternate decision makers. The court refused to agree, saying that the Statement of Wishes only mentioned medical care, which the judge distinguished from matters of personal care such as feeding.

To summarize, the judge found:
1. That “Mrs. Bentley is currently capable of making the decision to accept oral nutrition and hydration” and that she “is providing her consent through her behavior when she accepts nourishment and liquids”; this in spite of her very obvious incapacity in all other things.
2. Providing food or water by glass or spoon (as opposed to by tube) is a form of personal care, not health care;
3. The wording of both documents signed by Mrs. Bentley failed to constitute valid representation agreements or advance directives, so there was no validly appointed alternate decision maker for her, or at least not for matters of personal care;
4. Even if Mrs. Bentley was incapable of consenting to oral nutrition and hydration, the legislature did not intend (her Statement of Wishes or her Living Will) to give anyone the right to refuse, on her behalf, basic personal care necessary to preserve life.

The judge also found that anyone who withdraws or withholds food and/or water from an adult who is not capable of making that decision would face potential criminal liability.

At Boughton, we feel the best way to deal with these issues is to ensure that you have a properly appointed alternate decision maker in place. In BC this can be done by a Representation Agreement. We also urge clients to make their health care and personal care wishes known to the representative through clearly worded written statements as well as frank discussions about the issues.

We strongly urge you to review your previous Statements of Wishes, Living Wills, Representation Agreements or Advance Care Directives to determine whether they actually allow your wishes to be carried out in light of the Bentley decision. If you are not sure, please contact us.

Posted in Law | Leave a comment

Where is my donation going?

Posted on November 28, 2013 by Maria Holman

As Christmas approaches, our thoughts may turn to helping those less fortunate than us.  Canadians are generous people, but many of you wonder whether the gifts you make to charities are really getting to the people they are meant to help.  That includes those of you who want to make a charitable bequest in your will.

This cynicism is unfortunate, because there are so many excellent charities out there and the need is so great.  It’s always the bad apples that get the publicity.

I recently attended a meeting of the Estate Planning Council of Vancouver, of which I’m a member, where our guest speaker was Marcel Lauzière, President and CEO of Imagine Canada.  Imagine Canada is an organization that, among other things, makes information on Canada’s 86,000 or so registered charities available to the public.

Among the messages Marcel brought to us was that in order for charities to do their work, they necessarily incur administrative costs.  For example, in order to get your donation to the hungry (such as through a food bank) a distribution centre is needed.  Yes, most of the work may be done by volunteers, but operations work more efficiently if there is an experienced person at the helm, and such people do not generally work for free.

The help line needs infrastructure (eg, telephones) and the women’s shelter needs, well, a shelter.  As another attendee pointed out, even getting you your charitable receipt requires resources, such as a computer to generate and print or send that receipt.

How can you know what percentage of your donation dollar is actually hitting the ground where it’s needed?  go to http://www.cra-arc.gc.ca/charitylists/, or to http://www.charityfocus.ca, and look up the charity you are thinking of donating to.

If you want 100% of your charitable donation to go to the charitable purpose and you don’t care about getting a tax reciept, you can do one of two things.  One is to give by volunteering your time rather than money;  the other is to give directly to the person asking for  help.

At least volunteering ensures your donation goes to your intended purpose.  Giving money to a street person, for example, may not actually do him much good, whereas if you give to an organization that assists such people, he may actually get the assistance he needs (ie, shelter, medical help, advocacy, a meal).

If you can afford it, give now, and give generously.  Do your research.  Consider the smaller charities that may in fact be less “top heavy.”  Consider local charities that help the people you pass on the street every day.  And by all means update your will to leave part of your estate to a charity that has some meaning for you.  Just don’t be so cynical.  After all, Christmas is coming.

Posted in Law | Leave a comment

End-of-life wishes: Whose Decision?

Posted on October 18, 2013 by Maria Holman

The Supreme Court of Canada has just released its decision in the Rasouli case (Cuthbertson v. Rasouli 2013 SCC 53)

For those unfamiliar with the case, Mr. Rasouli has been on life support for a number of years following complications from surgery. His doctors want to remove him from that life support, in which case he will likely die fairly soon. His wife has refused to give her consent to such removal from life support. Under the health care legislation of Ontario, she is Mr. Rasouli’s substitute decision maker by default, because Mr. Rasouli himself did not appoint such a decision maker. For that reason, in this case, we do not know what Mr. Rasouli would have wanted, had he turned his mind to the possibility that a time such as this would come, where he is in a coma with no hope of recovery, and may remain so for a very long time.

My personal opinion, for what it’s worth, is that the Supreme Court got it absolutely right. The Ontario legislation provides a scheme for who gets to make decisions in such cases, which Mr. Rasouli’s doctors were not willing to follow. This decision provides us at least with the certainty that where a provincial government has set out the rules, they must be followed.

In British Columbia, which has similar legislation, a spouse is also the default decision maker, followed by a list of others, including adult children.

If a situation similar to that in Rasouli arose in BC, his wife would have a right to refuse health care that would prolong his life (ie, life support) but the Health Care (Consent) and Care Facility (Admission) Act is silent about what would happen (absent the written instructions of the patient) if the medical professionals wanted to unplug the person and the spouse refuses.
In British Columbia and most other provinces it is possible for a person to appoint a representative for health care, or alternate decision maker, under the Representation Act (BC) or similar legislation. I urge you to do so. It lets your family and doctors know your wishes. It avoids fights among family members (yes, even between competing spouses, because in BC at least, under the new Family Law Act, it is possible to have more than one legal spouse).

A well drafted representation agreement, containing specific wishes, may also prevent the kind of situation that Margaret Bentley and her family found themselves in. That was the “spoon feeding” case in BC, where Mrs. Bentley made a “living will” requesting that she not be fed “nourishment or liquids” if she was in the advanced stages of Alzheimer’s. She had reached that stage but staff at the facility where she lived were nevertheless putting food in her mouth, which, we are told, she reflexively ate, thereby remaining alive. When her family resisted, the health care authority sought to bar the family from contact with Mrs. Bentley.

Take care of letting your wishes be known while you can. Talk to family members about what you want, and then put it in writing. A lawyer can help you draw up a representation agreement that will stand up to challenge, but you can also go online to the BC Government web site. Whatever your end of life wishes, don’t leave them to be fought over among family and/or medical professionals.

Posted in Law | 2 Comments

“All I need is a simple will”

Posted on July 4, 2013 by Maria Holman

How much does a will cost?

Under the heading “Frequently Asked Questions”, this is probably number one in my practise. As a lawyer, I am most likely going to answer “that depends”, but today I am going to try to be a bit more specific.

It won’t be easy. There are a number of expectations about what a will costs. Usually the question “how much do you charge for a will” is immediately followed by the statement “all I need is a simple will”. Well, you may be right, but how do you know that? And as your legal adviser, how can I know that?

Let me give you an example of why there is really no such thing as a “simple will”.

Meet my clients Fred and Ginger (ok, I admit it, those are not their real names). They have been married for almost 40 years now, and they have one daughter, Trudy, age 38. They want to leave everything to each other, and on the second death, everything is to go to Trudy. Trudy lives in Los Angeles with her husband Mark and Mark’s son from his first marriage. Sounds simple enough, doesn’t it?

So here is what those Wills might look like: “If my spouse [Fred/Ginger] survives me, then I give all the residue of my Estate to him/her. If [Fred/Ginger] does not survive me, then I give all the residue of my Estate to my daughter Trudy.” End of story, right? Simple!

But what if Trudy predeceases both Fred and Ginger? Horrible though that would be, it can happen. Hmmm, they hadn’t thought about that. So I sit down the Fred and Ginger and ask them a number of questions. Would they want Trudy’s share to go to Mark and/or his son? (Not really) Do Fred and/or Ginger have siblings they might want to give their estate to? (No Way!) Do either of them have a favourite charity? (Yes, but….)

During the interview, it came out that Trudy had had a child when she was a teenager, whom she had given up for adoption. That child (let’s call her Katy) is now in her early twenties. She searched for and “found” Trudy and has formed a close relationship with Fred and Ginger, her “bio-grands” as she calls them. Fred and Ginger had wrongly assumed that if “something happened” to Trudy, the estate would automatically go to Katy. They are not close to Mark or Mark’s son, and really hadn’t thought of leaving anything to them, especially as Mark’s parents are very well off. But then, so are Katy’s adoptive parents. Charities sounded like an attractive alternative, but Fred is adamant about benefiting medical charities while Ginger loves the arts and would rather see her money go to the support of dance or music.

Still sound like a simple will? In fact, the wills themselves, once they were done, were relatively straight forward: all to each other, on the second death to Trudy, and if she had predeceased, a fixed amount to Mark’s son, half of the rest to Katy and the other half equally among four charities. If Katy had also predeceased, the whole residue equally among the four charities. Simple!

But getting to that stage took several hours of meetings, drafting and going back and forth with emails.

So back to the frequently asked question: how much for a will? The two wills I did for Fred and Ginger ended up costing them about $1,200.

Considering that the cost included:
• a review of all of their assets to see if they could re-structure ownership to save or defer probate fees and other taxes (potential savings of around $30,000),
• a consideration of whether their investments made sense and if perhaps some life insurance could help (and a referral to a financial planner/life insurance expert),
• a discussion about how to simplify their estate for themselves and eventually their executors,
• an explanation about the legal effects of adoption, and
• ensuring that their estate goes where they really want it to go,

would you consider that value for money? Fred and Ginger sure did.

Posted in Law | Tagged , , , , , , , , | Leave a comment

Sounding Off About A Sound Mind

Posted on February 20, 2013 by Maria Holman

Most people know that you have to be “of sound mind” when you make a will, or it’s not valid. This has nothing to do with the amount of noise you make.

Most people also know that there is no bright line between a sound mind and an “unsound” mind. All of us can feel like we have “lost it” on occasion. There are, of course, those among us who really have lost it, or maybe never had it to begin with.

Where it becomes tricky is in those situations where people have good days and bad days, or where they are on medications that help, but then they don’t take them. And some folks are just plain odd and not of unsound mind, though it can be hard to tell. I’ll call this the “Grey Zone.” Do people in the Gray Zone have testamentary capacity? in order words, are they “of sound mind” so as to be able to make a valid will?

The courts in Alberta and Manitoba have recently had an opportunity to clarify the rules that apply, when the disappointed heirs of someone who made a will and/or died while in the Gray Zone claim the deceased did not have testamentary capacity when he or she made the will.

The first case, from Alberta, involved an 83 year old man who left most of his estate ($600,000) to his brother, and only $25,000 to his son. The man had a stroke in 2000, and started divorce proceedings against his wife which were concluded in 2007. The wife died in 2009. In 2010, the deceased made a new will and he died soon after.

The son sued, in part because the deceased’s previous will had left everything to the wife, and then to the son if the wife died first. That will had been made before the stroke, and there was lots of evidence that the stroke had serious effects on the deceased’s state of mind.

The son asked for the will to be “proven in solemn form” which is a process by which the will and the circumstances in which it was made are closely examined. If there are sufficient suspicious circumstances, then the will must be proven in solemn form. In this case the trial judge did not find the circumstances suspicious enough. The judge found that there was no evidence the deceased did not have testamentary capacity, even though he thought he could help people live to 200 or more years, and he had become increasingly paranoid, hanging dolls and toys around his trailer to keep out intruders.

The son appealed to the Alberta Court of Appeal, which looked that circumstances and the man’s behaviour after his stroke until his death, and found that there were indeed indications of suspicious circumstances. Therefore, the will had to be proven in solemn form. This does not mean the will is automatically set aside, but at least the court will take a good hard look at whether the deceased really knew what he was doing when he essentially disinherited his son.

The second case was heard in Manitoba. The deceased in this case was an 89 year old lady who had suffered from schizophrenia for many years. She had been hospitalized twice, once in 1970 and again in 1979 after her husband died. Other than that, she had functioned well, though she was on medication for most of her later life.

The will in question was made in 1980, after the husband’s death, and she left everything to her twin brother, and if he were to die before her, to his son Warren. The brother did die first. The children of her other siblings were put out that only one person among them, Warren, was going to get the whole estate of about $1.1 million.

The case revolved around whether the schizophrenia from which the deceased suffered had affected her capacity to make a will. The court said just because someone suffers from an illness like schizophrenia does not mean they are not of sound mind, especially if the disease is being managed, as it was here. The fact of the schizophrenia did create a “suspicious circumstance”, though, so that, as in the previous case, a close examination of whether the will was valid had to be made.

There was evidence that the deceased did behave oddly from time to time, but she was also described as bright and able. The lawyer who met with her when the will was made, was able to determine that she knew what she had, who her family members were, and even the legal description of her farm. Since the relevant date for testamentary capacity was when the will was made, the fact that she became odder as time went on was not relevant. The court also did not think it odd that the deceased left everything to her twin brother, as they had been very close. Warren, the actual beneficiary, was the brother’s youngest son, who was living at home and farming with his father when the will was made.

In the end, the court decided that just because the deceased had suffered from schizophrenia, that did not automatically mean she was not of sound mind, or that the will was invalid. It just meant there were suspicious circumstances that required the person wanting to use the will (that is, Warren) to prove it was valid. The court said it was, and that the illness did not take away the deceased’s capacity to make a valid will.

All of this is very good news for people who are in the Gray Zone. What it requires, though, is someone who knows how to determine if someone is “of sound mind,” to draft the will. When I meet with a client, whether they are potentially “in the zone” or not, I always take really comprehensive notes about what was asked, and what the answers were. It is unlikely that I am going to remember exactly what was said 10 years from now, when the client has died and the heirs start circling and I am called to testify about the state of mind of the deceased. But I’ll have my notes to help.

So please don’t be offended when your lawyer says they can’t just “send you the forms to sign” when you make a will. And if you think you can just use a “will kit”, who is going to testify when the relatives you left out of your will take a run at it? Hmm?

Posted in Estates, Law | Leave a comment

Probate, Explained

Posted on February 12, 2013 by Maria Holman

As an estate and wills lawyer, I am often asked to explain, what is Probate?

PROBATE, from the Latin probatio, means “the proof of a will”. It is the process by which a will is proven to be valid or invalid. The will could be invalid for a number of reasons, such as a later will, proof that it was revoked by some action of the deceased (like ripping or burning it), or because it was not properly witnessed in the first place.

Probate involves a court application, though usually not a court appearance; the necessary documents are provided to the probate registry and the rest is done “behind the counter”.
If everything is in order, and the court is satisfied that the will is valid and all the necessary information has been disclosed in the proper format (through affidavits), the court will issue a “Grant of Letters Probate” in favour of the person applying.

Usually it is the executor named in the will who applies, but sometimes that person is unable or unwilling to do so. For example, the named executor may have predeceased the will maker, and no alternate was named. In that case another person may apply, and the court will issue a “Grant of Administration with Will Annexed”, meaning the person who applied for the Grant may administer the estate according to what is written in the will, as if he or she were the named executor.

ADMINISTRATION is the process of actually carrying out the terms of the will. It is the management of the estate. Administration is also the term used to describe the process of looking after the estate of a person who died without a will. In that case, someone connected to the deceased or their estate, who may or may not be an heir, has to apply to court for a Grant of Administration, and they will be appointed as Administrator of the Estate. Because there is no will, (legally called an Intestate estate) the law determines who gets the assets. No, it is not usually the government, contrary to popular belief, though that can happen if there are no heirs. The process of managing an intestate estate prior to distribution is basically the same as for managing an estate where there is a will.

The main difference between the two procedures is that an executor appointed in a will does not need the consent of the beneficiaries or creditors of the deceased. An applicant for administration, with or without a will, needs to not only get those consents, but also, usually, to post a bond, a kind of insurance in case the administrator absconds with the assets. Because of that, an applicant for administration usually needs to own their home and/or have other substantial assets and a tie to the location where the estate is to be administered.

Probate of a Will “in common form”, as described above, does not prevent a disappointed heir or other party from contesting the validity of the will on other grounds. For example, the will may appear valid, except that there is evidence (or allegations) that the deceased was unduly influenced by someone, or was not of sound mind when he or she made the will. In British Columbia, the Wills Variation Act allows a spouse or child of the deceased to contest a will if the deceased “did not make adequate provision” in the will for him or her. What that means is very dependent on the particular circumstances of the case. In other provinces, people who were in a position of dependency on the deceased, but who were not provided for, may apply to court to have that rectified.

In each of these situations, the questions and issues will be discussed in open court, and the judge will decide whether the Will is valid, and if so, whether the distribution set out in the Will should be altered.

How long does Probate take? This is difficult to answer, because every estate is unique. The process of figuring out what is and is not part of the estate, and how much each asset of the estate is worth, can take a considerable amount of time. If the deceased was organized, and the executor is familiar with the estate assets, as might be the case in a husband and wife situation, an application for probate can be prepared and filed in a matter of weeks after death. In the case of an unexpected death of a person who kept his or her affairs private, it can take much longer. Sometimes it can take a long time to track down beneficiaries. This can be more of a problem if there is no will, and it becomes necessary to track down distant cousins.

As an example, I have just completed the administration of an estate where the deceased died 6 years ago, without a will, and another estate where the deceased died 6 months ago, but was very organized. Bottom line, if you want to ensure that your beneficiaries receive their share of your estate sooner rather than later, make a will and keep your papers in order. Believe me, it really does speed things up.

Posted in Law | Tagged , , , , , , , , , , , | 5 Comments