The executor of a will has a handful of responsibilities when administering an estate – including accounting for all estate assets, debts, and money exchanges coming into and out of the estate. Once the executor finishes the administration process and is ready to distribute the estate to the beneficiaries, they typically need to give each beneficiary a comprehensive document that accounts for everything that has entered and left the estate. The value and complexity of the estate administration process can make this document extremely detailed and complex.
In the case of a careless executor, a beneficiary might raise questions over the process of administration.
Sometimes, an inheritance can change a beneficiary’s life, and it’s stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have committed fraud by stealing assets from the estate and not including them in their report to the beneficiaries. Beneficiaries must proceed with caution and ensure all assets are accounted for.
If you believe that the final accounts don’t properly represent the assets of the estate, there are options available:
While beneficiaries might feel helpless during the estate administration process, they do have certain beneficiary rights. Beneficiaries have the right to the accounting information during the estate administration process. The law requires an executor to provide this information if a beneficiary requests it. Beneficiaries can keep close eyes on the estate through the accounting information if they’re suspicious of the executor’s intentions.
Passing of Accounts
When an estate asset has gone missing, it’s usually up to the beneficiaries to notice and act on it.
A beneficiary can compel the executor to act by petitioning the court for a passing of accounts. If the courts grant this motion, the executor must present to the courts all transactions, both incoming and outgoing, from the estate, from the date they took control of the estate to the date of the hearing. This process can clarify any inconsistencies in the accounts. It can track where all the estate assets went, verify what fees and debts were paid, and determine who receives what from the estate. This can be an exhaustive process, but it will show, in detail, everything that left and entered the estate accounts.
After forcing the executor to act through requesting a passing of accounts, if the beneficiary is still unsatisfied, they can sue on the behalf of the estate or look to have the executor removed.
Beneficiaries may feel they don’t have control over the estate administration process. However, they do have certain rights to ensure the process is managed correctly. If you’re a beneficiary that thinks an estate asset has been misrepresented, contact an experienced estate lawyer today to begin solving this problem sooner rather than later.
Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
Will-writing, estate planning, estate administration, probate, trust funds, inheritances – the list of things for will-writers to consider goes on and on. In this blog, we’ll take a look at some of the benefits of having an updated and valid will and reasons to start your estate plan sooner rather than later.
Before going into the benefits, let’s first look at what happens when someone dies without writing a will. When someone dies without a valid will it is dying intestate. When this happens, the courts have a specific course of action that they take to distribute your estate. An estate administrator is appointed to act as the estate executor. Generally speaking, a person’s spouse and children inherit the entirety of the intestate estate. If the testator doesn’t have a spouse or children, their parents or surviving relatives receive inheritance from the estate.
Some people might argue that since they only want to leave their estate to their spouse and children, there is no point in preparing a will. To answer this, let’s look into some of the advantages and benefits of writing a will, even if the process of intestate succession is similar to your own intentions.
You Call the Shots
Writing a will offers the most obvious benefit: you decide exactly how to distribute your estate. When someone dies intestate they have absolutely no say in what happens to their estate. By writing a will, you can choose who receives what from your estate. Will-writers are able to get creative with their assets; some will-writers will choose to create trusts for their beneficiaries, who must meet certain conditions like graduating university to access their inheritance. In intestacy, there is a set formula that determines how much of the estate the spouse and children each receive. The deceased doesn’t have any say in this and is unable to make specific provisions for different people.
Every estate has an executor or administrator, or executor. They are responsible for paying estate debts and taxes, handling estate assets, and distributing the estate to beneficiaries. You’ll want to appoint someone you trust for this role, and make sure they are aware of what it entails. By preparing a will, you’re able to decide who the estate executor is. When you die intestate, anyone is able to apply to be the administrator of your estate. The courts have the final say in who is given the position.
Another decision you get to make with a will is who your children’s guardian will be. If both parents pass away while their children are still minors, someone must become their guardian. You can appoint a relative or friend who you believe would be the best fit for your children in your will. You are also able to use your will to put aside parts of their inheritance for a specific purpose, like tuition or money to put towards a house in the future.
Probate isn’t Exclusive to Will-Writers
Courts must validate most wills through probate. During this process, you must pay a probate fee of approximately 1.4% of the entire estate’s value. You can’t avoid probate fees by not writing a will – the estate administrator must still complete the probate process. Often, estates with prepared wills are granted probate faster than intestate estates. Preparing a will ensures that loved ones receive their inheritances much sooner and with less stress.
The Estate Saves Money
There are a number of advantages to gift giving before death – both financial and sentimental.
By creating an estate plan, there are ways to minimize probate fees and defer tax payments to ultimately increase the value of your estate inheritance for loved ones. For example, a common estate planning tool is gift giving before death. You can minimize the probate fees payable upon your death by lowering your estate’s value. In the end, the same people receive their inheritances; however, there’s more of the inheritance for them to enjoy, and you can watch them enjoy the gift in your lifetime.
A Will Can Make Your Estate Plan More Flexible
By writing a will, you have the flexibility to distribute your estate exactly as you’d like. Using trust accounts in your estate plan is one way to ensure your gift is given exactly as you wish. Maybe you want to give funds to a child in increments rather than a lump sum. Or, you want your spouse to continue living in your home, but have it given to a child after both you and your spouse pass away.
Keep in mind that you can revoke or amend wills at any time, as they are not final documents. After your first will is written, it’s easy and important to keep it updated. Writing a will doesn’t lock you into what you’ve written, so long as you have the capacity to make changes later in life. For more on this, read our blog on testamentary capacity in estate planning.
You Can Prevent Conflict and Stress
By creating your own estate plan, you are able to speak directly with loved ones and ensure that they know what to expect upon your death. Loved ones are often disappointed or offended if they’re left out of the will without knowing why beforehand, and this can unfortunately lead to legal conflict within the family. Simply explaining your intentions can help to alleviate a lot of tension. Further, if you die intestate, it can be stressful for your loved ones as they’re left uncertain with what will happen to the estate. Family members might argue over who they believe should be the estate administrator as they are unsure of your final wishes.
At a minimum, having a will in your name can provide certainty for your loved ones in the difficult circumstances of a death in their family. Preparing a detailed estate plan may cost you money initially, but it can save your estate thousands of dollars and countless hours for loved ones dealing with an intestate estate. If you need help preparing your first will, contact an experienced estate lawyer today. We can help you create an estate plan perfect for your individual circumstances.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
For those who don’t know, the local newspaper Victoria News hosts an annual Best of the City awards where you’re able to vote on your favourite Greater Victoria businesses! Voting includes a wide variety of categories, including best attraction, ice cream, whale watching, and best law firm. This year is the 28th annual Best of the City Awards.
League and Williams is extremely proud to have won the best law firm in Victoria award four years in a row (since 2018) and we have no plans of ending the streak this year! Voting is easy and now more than ever your local Victoria businesses need your support. To submit your vote for League and Williams, head on over to the contest page hereFor those who don’t know, a local newspaper, Victoria News, hosts an annual Best of the City awards where you’re able to vote on your favourite Greater Victoria businesses! Voting includes nearly any business category you can think of – best attraction, best ice cream, best whale watching, best law firm, etc. This year, despite the COVID-19 pandemic, the 26th annual Best of the City contest will continue.
League and Williams is extremely proud to have won the best law firm in Victoria award two years in a row (2018 and 2019) and we have no plans of ending the streak this year! Voting is easy and now more than ever your local Victoria businesses need your support. To submit your vote, head on over to the contest page here. You can find League and Williams’ Lawyers under the “Services” category and then under “Best Law Firm”. After verifying your email address, you will be able to submit your vote for as many, or as few categories as you’d like!
Voting for the contest has already begun and continues until midnight on Monday, June 15, 2020.
Prizes for the Voters
The Victoria News holds their own giveaway for all of the voters. For everyone who votes for their favourite businesses, they’ll be entered into a draw to win 1 of 3 gift card packs valued at $100! This contest is subject to Victoria News’ rules and is done solely by them.
Additionally, we’re hosting our own giveaway for voters! We’re giving away a brand new dash cam for your car and $150 to be spent at your favourite local business! All you have to do is like our Facebook post, comment which local Victoria business you’d spend the $150 on and tag a friend in the comments! A winner will be selected at random once voting for the awards has ended. We will announce the winner on our Facebook page at noon (PST) on June 16, 2020. This giveaway is in no way sponsored, endorsed or administered by, or associated with, Facebook.
And finally, thank you so much for your continued support! We pride ourselves in our team’s ability to provide our clients with a high level of service. We encourage you to share our giveaway details with your family and friends. To submit your Best of the City votes, visit https://vicnews.secondstreetapp.com/2020-Best-of-the-City/
In case you didn’t know, this isn’t the first giveaway we’ve hosted and certainly won’t be the last! To stay informed about our future giveaways, follow us on our social media accounts – like us on Facebook, follow us on Twitter and subscribe to our YouTube channel.
“>. You can find League and Williams’ Lawyers under the “Services” category and then under “Best Law Firm”. After verifying your email address, you will be able to submit your vote for as many, or as few categories as you’d like!
Voting for the contest has already begun and continues until midnight on Sunday, May 15, 2022.
Prizes for the Voters
The Victoria News holds their own giveaway for all of the voters. For everyone who enters and votes on a minimum of 10 local businesses in Greater Victoria will be entered into a draw to win an Explore Victoria Prize Pack Valued at $800!! This contest is subject to Victoria News’ rules and is done solely by them.
And finally, thank you so much for your continued support! We pride ourselves in our team’s ability to provide our clients with a high level of service. We encourage you to share our giveaway details with your family and friends. To submit your Best of the City votes, visit https://vicnews.secondstreetapp.com/BEST-OF-THE-CITY-AWARDS-2022/gallery/?group=415247
To stay informed follow us on our social media accounts – like us on Facebook, follow us on Twitter and subscribe to our YouTube channel.
In BC, there are strict rules that govern when a will can be deemed a valid will. Wills must be (1) in writing, (2) signed and (3) witnessed by two or more people. When the testator’s intentions are clear, courts can rule invalid documents as valid in some cases. You may have heard of the term holograph will – this is a will that is hand-written by the will-writer and signed, but was not signed by any witnesses (or was not witnessed at all). There are scenarios where a Court process called curing could make this type of document a valid will.
People usually make holograph wills shortly before their death when they are unable to make a valid will. When there isn’t a valid will, the Courts will try to cure documents that show their final intentions. This is done in an effort to prevent the will writer dying intestate (without a valid will).
Holograph Wills
In some provinces, a holograph will can be valid on its own. The classic example of a holograph will being ruled a valid will is from the Harris Estate(1948) in Saskatchewan. In this case, a farmer was pinned underneath his tractor and he wrote a holographic will on the fender. He used a pocket knife to etch, “In case I die in this mess I leave all to the wife”. He had written his intentions and signed the fender himself. The Courts considered this valid, as it had met the requirements of a holograph will according to Saskatchewan law.
Unfortunately, for those living in BC, holograph wills are not recognized under the Wills, Estates and Succession Act (WESA). If the above case happened in BC, the document would be invalid as it doesn’t meet the criteria of a valid will. However, this doesn’t mean that you can only have a say in your estate distribution by writing a valid will. In emergencies, it can be unrealistic to expect a will to be written in accordance with the law. Because of this, BC courts can cure testamentary documents that aren’t legally valid into a valid will.
Curing the Testamentary Document
Emails and digital documents can be cured into valid wills like a testamentary document.
In s.58 of WESA, there are specific details and instructions for when a testamentary document can be cured. A testamentary document is described as “a will or designation or a document naming a person to receive a payment or series of payments on death under a plan or arrangement of a type similar to a benefit plan.” A testamentary document can be cured into a valid will if it represents:
The testamentary intentions of a deceased person,
The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
The testamentary document must be authentic and representative of the deceased’s testamentary intentions. It must clearly be their final expression of intention. Generally, the more a document resembles a valid will, the higher chance it has of being cured. During the court process, external evidence can demonstrate the testator’s final intentions. External evidence is often essential to the Courts in making their decision.
Electronic Witnessing
As of June 23rd, 2020, people are able to have their wills witnessed electronically in BC. While this isn’t a holograph will, it does make it easier for people to prepare a valid last will and testament in a short time frame. To have a will electronically witnessed, one must be in the virtual presence of two other people. This is commonly done through video conferencing programs such as Skype or Zoom. For more information, read our blog on electronically witnessing a will.
As a will-writer, the best way to ensure that you leave a valid will is to write one today. While the courts can cure testamentary documents into valid wills, it’s often the case that the courts are unable to cure the document, leaving the estate of those without valid wills intestate. Further, court proceedings are often stressful and time consuming for loved ones involved. It’s always best to mitigate risk and avoid court hearings when at all possible.
If you need help preparing a valid will or curing a loved one’s testamentary document, contact an experienced estate lawyer today. We can help to ensure that you or a loved one’s final intentions are respected and followed through.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
An estate executor must act in the best interests of the beneficiaries as part of their responsibilities. Executors have a fiduciary duty to act in the best interest of beneficiaries, regardless of their personal relationship. Sometimes, the executor and beneficiaries don’t have a good relationship. This situation leaves beneficiaries worried about the executor’s handling of the estate. This can be more stressful if the executor takes minimal care in the work because it doesn’t impact them. In situations like this, a beneficiary might consider applying for an administration bond.
If the administration is in BC, any interested person can apply for an administration bond, providing security for the process. With an administration bond, the executor must deposit money with the Courts to ensure they fulfil their fiduciary responsibility as executor. This is similar to making a safety deposit when renting an apartment, as it’s meant to ensure you handle others’ property carefully. If the executor doesn’t act appropriately, they risk losing the administration bond. In the case of an easy administration with no concerns, the executor receives their deposit back quickly.
When Administration Bonds Can Be Issued
Any interested party can apply for an administration bond, but the courts decide whether to allow it or not. In some cases, the will writer includes a provision in the will outlining whether an administration bond is mandatory. If the will requests the creation of an administration bond, the applicant typically finds it easy to succeed with their claim. When the will is silent on the matter, it can become much more complex. It’s when the will is silent on that matter that it can be more complex.
There is no set value that the administration bond must be. It can vary depending on the case and the size of the estate.
When there is no clause relating to an administration bond in the will, the applicant must have evidence suggesting that the executor is not going to act reasonably. The Courts don’t normally issue administration bonds in BC when the will doesn’t include a clause requesting one. An interested party should have strong evidence that shows the executor is likely going to act against their fiduciary duty. For example, evidence of the executor having a history of poor estate administration. When there isn’t a strong case to impose an administration bond, there are alternative measures that interested parties can take.
Alternative Options to the Administration Bond
Sometimes, an administration bond is not the most viable option in your circumstances, however, you still feel concerned about the named executor handling the estate. There are other measures you can take to ensure that the estate is administered correctly. Before any beneficiary receives their inheritance, the executor must provide a detailed account of all of the estate assets. If you believe an asset has gone missing or is smaller than it should be, you can issue a request for a passing of accounts. This is a court hearing where the executor must prove the validity of the estate accounts. For more information, read our blog on passing of accounts.
As a last resort effort, interested parties are able to apply to have an executor completely removed from their duties. The courts will only allow this when they cannot see any other alternatives to fix the issue. Typically, this will only be allowed after the executor has made a significant mistake in the estate administration. Unlike an administration bond, executor removal is not a precautionary measure. For more information, read our blog on removing an executor and the legal grounds for doing so. In some less extreme scenarios, a co-executor can be appointed to help with the administration.
If you’re a beneficiary who feels uneasy about the executor of a loved one’s estate, contact an experienced estate lawyer today. We can ensure that the estate is handled appropriately whether that means applying for an administration bond, a passing of account or the executor being removed.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
When a loved one passes away unexpectedly, it may leave family and friends without any idea of who should plan the funeral or what the deceased’s preferences would have been. As a general rule of thumb, the deceased’s estate executor is the person who is responsible for and has the authority to make funeral arrangements. When a person dies intestate (without a valid will), they won’t have named an executor who would otherwise be responsible for managing their affairs after death. One might conclude that the person acting as the intestate estate executor (administrator) should arrange the funeral. However, the selection of the intestate administrator likely won’t occur until well after the funeral. So, who plans the funeral arrangements of an individual who has died intestate?
Hierarchy
Generally speaking, when there are no directions or instructions left by the deceased, the next-of-kin will be the person to make the funeral arrangements. When the next-of-kin is unavailable, the next closest relative will have the responsibility. Usually, the hierarchy of authority resembles this:
Spouse,
Children,
Parents,
Siblings, and then
Grandchildren.
If the deceased’s spouse cannot or does not want to arrange the funeral, the authority will pass to their children. If the children cannot take on the role, the extended family will receive the offer. This protocol is not statutory law in BC, but is the most common way people address this issue.
Instructions Left by the Deceased
The best way to avoid intestacy disputes with your estate is to prepare an estate plan as soon as possible!
Typically, people preparing an estate plan include instructions for their preferred funeral arrangements. Regrettably, the law generally does not bind instructions for funeral arrangements, and the writer cannot guarantee adherence to their instructions. The person with the authority to plan the funeral arrangements can essentially make any decisions they wish in regards to the funeral. If you have specific requests for your funeral, it’s best to speak with your loved ones so that they understand what you wish for. It’s rare for a family member to specifically go against your requests when they understand and know what you wish for.
It’s recommended that people leave instructions of how they wish to have their funeral and burial arrangements planned. When they do, it’s easy for loved ones to simply follow these instructions instead of having the autonomy to make their own decisions.
Making Funeral Arrangements
Aside from planning the actual event for the memorial service, the person organizing will have a handful of decisions they will have to make. Some of these decisions include:
Whether to cremate or bury the body;
Where to have the remains rest;
Whether to have a funeral or memorial service;
Where the funeral/memorial service is to be held; and
How much should be spent on the service.
It’s important to understand that the person planning the funeral is not the person who pays for everything. The deceased’s estate will pay or reimburse the person who pays for the funeral, assuming a reasonable amount is spent on the service. This means that the person planning the funeral can’t spend an excessive amount and expect to be fully reimbursed.
Controversy Over Who has the Authority to Make Funeral Arrangements
In the Ontario case of Catto v. Catto (2016), the deceased’s spouse and mother argued over who had the right to bury the deceased’s ashes. The deceased died without a will and without any written instructions of his funeral arrangements. In a case like this, the courts will use evidence and circumstantial factors to make a decision over who has the authority. The courts won’t necessarily apply the hierarchy as described above. Among other factors, because the spouse was the sole beneficiary of the estate she was given priority to make the funeral arrangements of the deceased. This case helps to show that there isn’t a specific system of determining who is responsible for making funeral arrangements. In conclusion, it’s always best for you to leave instructions and give loved ones an idea of your wishes to avoid dispute.
It’s always best to avoid intestacy and prepare your estate plan as early as possible. Remember- your estate plans can always be updated at a later date with ease. If you need help preparing your estate plan – the will, funeral arrangements, power of attorneys, etc., contact an experienced estate lawyer today. We can ensure that your funeral and estate are executed exactly as you’re expecting.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
It’s important that estate planners create detailed plans that they’re happy with before they pass away. Estate planning goes well beyond simply writing a will. A robust estate plan should provide you and your loved ones with detailed plans for the end of your life. This usually includes appointing a power of attorney and a personal health representative. Preparing for end of life care in your estate plan can save stress and uncertainty in an already difficult time. Further, you can construct your estate plan to maximize value for beneficiaries while minimizing risk of litigation. In this blog, we’ll discuss our tips to ensure that your estate plan is as detailed and effective as possible.
Make Your Intentions Clear to Beneficiaries and Family
With estate planning, a goal should be to avoid any estate disputes amongst beneficiaries. Estate disputes create unnecessary stress and conflict between loved ones. Carefully preparing a valid will can help to avoid this conflict. Family members often raise estate disputes when they’re surprised by their inheritance, and had different expectations. Simply talking with your beneficiaries and family can prevent disputes, sometimes preventing lengthy legal proceedings. Hearing from you and understanding your reasons for making the bequests is usually enough to prevent conflict from arising.
Start Planning Early
People are always asking: at what age should I prepare my will? Unfortunately, there isn’t any magical age that we can tell someone to write their will. The answer to this depends on each person’s financial situation and at which stage they are in their life. Ultimately, it’s always best to prepare your will sooner rather than later. We encourage people to start thinking about their estate plan as soon as they’ve accumulated any assets. This can include traditional assets like real estate, or even digital assets. For more information, read our blog on when it’s time to write a will.
Appoint a Power of Attorney and Representative
Naming someone to be your power of attorney or representative in the case that you become incapable in the future is an important piece of a complete estate plan. You can appoint someone now, giving them powers over your financial, personal, health and legal decisions if you become incapable in the future. You are also able to appoint an attorney who only has powers over legal decision. Appointing an attorney is an important precaution. You can help prevent a loved one from having to go through court processes to be named your committee by appointing them before it’s too late.
Include Estate Residue Provisions
The residuary clause is often the largest bequest in a will.
Because of the estate administration costs, taxes, or unpaid debts that arise after death, it’s impossible to determine the exact value of your estate while planning. The volatile housing market also means that a house or land is likely to increase in value after you finish your final will. To avoid leaving assets in your estate without a beneficiary, will-writers often make a residuary clause in their will. This usually looks something like, “The residue of my estate is to be given to my husband.” If there’s no clause, the residue of the estate is distributed according to intestacy laws.
Review and Update Your Will Frequently
If you were keen and prepared your will early, there should be many more life events ahead of you which warrant a revision to your will. Maybe you write your will then in the future get married, buy a new car, invest in property, or have a child. Whatever the case, you will want to modify your will to reflect any significant life change. Once you’ve prepared your will, it’s usually not difficult to re-write a new will to reflect the new changes in your life. Another option is to prepare a codicil when you wish to make a simple change to your will.
Account for Your Assets
Accounting for all of your assets is one of the first tasks your will’s executor is responsible with. It’s usually quite obvious to the will-writer what assets they own and where they are. This information is not always so obvious to the executor. What you can do to help alleviate the burden on the executor is prepare a detailed list of all your estate assets. You should describe what the assets are, what their approximate values might be and where they can be found. Executors can find it difficult to account for everything you owned without guidance. Further, will-writers should include any passwords and account information for digital assets. For example, leaving email passwords can be extremely helpful for executors as email information might be crucial during estate administration.
Consider Life Insurance
People usually think of life insurance as protection in the case of an unexpected death – protecting loved ones by providing a significant sum of money to help care for them. Another way to look at life insurance for elderly people is as an estate planning tool. Having a life insurance plan can reduce probate fees, make estate administration more efficient and increase privacy. For more information, read our blog on life insurance as an estate planning method.
Consider Writing a Secondary Will
For people who have large estates, it might be a good idea to write two wills – one for probate assets and one for probate-exempt assets. By doing this, you can minimize your taxes owed and increase the value of your estate. There are some implications with a secondary will that should be considered; however, it is usually a good idea for business owners or people who own many shares in a company. For more information, read our blog on secondary wills.
Get Professional Advice
While you’re allowed to create your own valid will in BC, it’s not always the most suitable option. There are countless intricacies and details that go into planning a will in the best interest of the will-writer and their beneficiaries. The language in the will needs to be well drafted or else it can raise complications in the probate stage. With the help of an estate lawyer, you can be sure your will won’t create unnecessary difficulties and will be executed as you’re expecting. If you need help preparing your estate plan or simply want someone to review your will, contact an experienced estate lawyer who understands BC’s estate laws.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
Unfortunately, it’s common that at some point in your life you will require someone else to make decisions on your behalf – whether those decisions are financial, legal or health related. Before an illness or injury renders you incapable, you are able to appoint a decision-maker who can act on your behalf in the event that you lose your capacity to make such decisions. You can appoint a power of attorney to manage financial and legal matters if you become mentally incapable. On the other hand, you can appoint a personal representative to handle health and personal affairs.
Essentially, a personal representative is able to make any health decisions that you can currently make for yourself. In order to name a representative, you must create a representation agreement. Any mentally capable adult (19 years of age or older in British Columbia) with the testamentary capacity is also able to create a representation agreement. The agreement does not have any impact on the your life unless you become incapacitated at some point in the future. If this happens, the named person will have the authority to make health care and personal care decisions on your behalf. In some cases, representatives can make some financial and legal decisions as well. The Representation Agreement Act specifies two different types of representatives: a limited (section 7) or unlimited (section 9) representative.
Limited (Section 7) Representative
In general, a section 7 representative is one who can make health care decisions that arise in a standard day-to-day scenario. To list a few areas that a section 7 representative could have authority to make decisions on:
Scheduling minor health related appointments such as cavity fillings or vaccinations;
Deciding whether to have a surgery or diagnostic procedures involving general aesthetics;
Any personal care matters; or
Minor financial and legal matters.
In the representation agreement, the testator can specify what authority they would like to give the representative. An important area where a section 7 representative doesn’t have authority is for significant, potentially life-altering decisions. As an example, a section 7 representative could not choose to stop life-support after a devastating accident, even if chances of survival were low. However, this would be a decision that a section 9 representative could make.
Unlimited (Section 9) Representative
A section 9 representative is given a large amount of authority over the testator and can make nearly any health-related decisions. The rights of a section 9 representative could include:
The ability to physically move the testator, even when they’re resisting;
Deciding whether to do a significant medical procedure;
Moving the testator into a care home facility;
Making decisions for the people supported by the testator, such as their children;
Making decisions that a power of attorney could; or
Handling any matters that a section 7 representative could.
Things to Consider Before Appointing a Section 9 Representative
Usually, a section 9 representative is best suited for people suffering from severe illnesses or injuries.
Before deciding what type of representative you wish to name, you should decide who you are going to appoint. The duties of a personal representative can be significant in some cases and you will want to choose someone who you can trust and who is willing to act on your behalf in your best interests. As such, you will want someone who knows you well and understands your values. In the case of a section 9 representative, they may be in a difficult situation where they must make extremely tough decisions on your behalf. If you’re worried that your representative will not act in ways consistent with your beliefs, you can choose to write a living will or expression of wishes.
If There is No Representative Named
In the case where the testator fails to name a representative before becoming mentally incapable, a committee can be appointed. Anyone can apply to become an incapable person’s committee and the courts will choose someone, with the incapable person’s best interests at the forefront of the decision making process.
For estate planning matters, it’s always best to be safe and plan ahead for any unexpected emergencies. It’s a good idea to name a power of attorney and/or personal representative as it can only be beneficial to your estate planning. While there is the option of a committee being appointed after capacity has been lost, a committee application is a long and expensive process that should be avoided when at all possible. If you need help creating a representation agreement, contact an experienced estate lawyer today. We can help you with all of your estate planning needs, ensuring you’re well equipped for any unexpected circumstances.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
A BC woman found dead without any legal will written in her name left a hand-written note in her car explaining her final wishes for how she wanted her estate to be distributed. The question before the courts was whether this note could be pronounced a valid will or if this woman had died intestate (without a legal will). In BC, the criteria for what makes a document a valid will is rather straightforward. The will or testamentary document must satisfy these three criteria:
Must be in writing;
Must be signed at the end; and,
Must be properly witnessed.
When the Courts Can Rule an Invalid Will as Valid
An invalid will in BC can be revised by the courts to make the will effective.
According to the Wills, Estates and Succession Act (WESA), the courts have the ability to make a curative provision to an invalid will. Essentially, this means that if a will does not satisfy the above requirements, the courts can “fix” the deficiencies of the will and validate it. A judge only makes a curative provision to an invalid will if they are satisfied that the will was authentic (written by the owner) and truly representative of the owner’s intentions at the time of their death (i.e. the document was meant to be their final will despite its deficiencies).
Well, you’re probably wondering, what does this mean? Can a simple note be an effective will in BC? Let’s analyze the case mentioned above.
The Case of the Hand-Written Note
The woman had suffered with depression for years and her death was deemed to be a suicide. The note was located in her car, near where her body was found. The note outlined precisely how to distribute her estate upon her passing. It was evident that this was an attempt to create a valid will. Comparing this to the criteria of a valid will above, the note was in writing and signed at the bottom, but it was not witnessed by anyone. A will that is clearly violating one of these requirements is an invalid will in BC unless:
The court orders it as effective (curative provision);
It is a valid will in accordance with other laws; or,
It is a valid will under another provision of the WESA.
The question now was whether this note could be deemed an effective will through a curative provision by the courts.
Was the Note Written by the Owner?
The woman’s spouse stated that this note was clearly her handwriting. One of her brothers also confirmed that it looked like her handwriting. The signature at the bottom was compared with her past signatures, such as on her bank cards and was a close match. There was no evidence that this note was written by someone else, and the judge ruled that this had been written by the woman – it was cured and considered a valid document.
Did the Note Truly Represent her Final Intentions?
The spouse, who lived with the deceased prior to her death, searched through all of her belongings to find any note or document representing a will. He did not find anything. There was also no will found under her name with the Vital Statistics Agency. Among other factors, the judge noted the following in determining if this note was her final intentions:
She explicitly calls the note her will;
Even though it was not witnessed, it was likely not witnessed because of the circumstances (being written in moments of contemplation of taking her own life);
The note was found in her car – showing an intention for it to be found upon her death;
The note was dated the same day she went missing – it was written close to her time of death;
The language used indicated conclusiveness; and,
There were no allegations of undue influence or incapacity when she wrote the note.
The judge determined that this note was a true representation of her final intentions. Because the note was deemed to be authentic and truly representative of her final intentions, the note was ruled fully effective as a legal will.
This case demonstrates the courts ability to honour a person’s final wishes even when proper will-making procedures were not followed. If the courts had ruled that this note was invalid and could not be revised, then the woman would have died intestate and her estate could only be given to either her mother or spouse.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
Organized sports, waterparks and martial arts classes are only a handful of activities for children which require a waiver. But can a minor really have all their rights signed away for them by a parent? What if you sign a waiver on your child’s behalf, and then the child sustains an injury?
The Case Between Wong and Lok’s Martial Arts Centre
In a 2009 BC case, a boy sustained an injury at martial arts class after his mother signed a waiver. The waiver said it released the Martial Arts Centre from liability for ‘any injury’. This was the case of Wong v. Lok’s Martial Arts Centre Inc. (2009).
The question for the courts was whether a parent could sign a pre-tort release (a waiver) for their child. Before participating in their classes, Lok’s Martial Arts Centre required all participants (or parents/guardians on a minor’s behalf) to sign the following release form:
CONDITIONS OF MEMBERSHIP AND RELEASE
It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School.
YOU ARE RESPONSIBLE FOR ALL INJURIES.
During a Hapkido class, Wong, then 12, became injured from a forceful throw to the ground. His family claimed the injury was due to battery and the martial arts centre was negligent. Wong confirmed in an affidavit that he did not sign the waiver above. Further, he didn’t authorize his mother to waive his rights and did not notice any rules before he was injured. Signs around the studio reportedly stated, “you are responsible for your own injuries, we are not liable.”
When Can Parents Waive Rights on their Children’s Behalf?
It may surprise you, but it’s rare for a parent to be able to legally waive a minor’s rights. According to s.40 of BC’s Infants Act, a parent or guardian can only make a legally binding agreement on behalf of an infant, either
It’s very common for children’s sports facilities to require parents to sign a liability waiver for a minor.
If the agreement involves a consideration not greater than $10,000, with the consent of the Public Guardian and Trustee, or
In a case other than one referred to in (1), with the approval of the Court by order made on the petition of a party to the agreement.
There are a number of exceptions to the above that are not relevant to Wong’s case. These can be found in section 40 of the Act.
A Court’s Interpretation
The Act states that parents can only enter a binding agreement for a minor in specific circumstances. This applies unless the Public Trustee has approved the agreement. It’s unlikely that a parent would ensure the Public Trustee approved of a waiver before taking their child to martial arts class.
The judge stated that, “if this is a complete code, parents and guardians cannot enter into binding contracts on behalf of infants except in strict accordance with the provisions of the Act.” The Act didn’t specifically apply to the case at hand regarding pre-tort releasing because it was too broadly worded. They noted the rationale behind the Act is applicable to the case and was relevant in finding negligence.
The judge found that “the Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.” The court dismissed Lok’s summary trial application. Wong was able to bring the case to trial, but didn’t proceed.
How This Case Applies to You
If you’re a business owner working with minors, requiring parents to sign waivers on their behalf, we encourage you to consider a form outlining the parent’s acknowledgement of risk. With a parent understanding and accepting the inherent risk of the activity to follow, your business can have a much stronger case against a possible lawsuit. Wong’s case shows that a dismissal of liability for a business on behalf of a minor will likely not be held up in court as an enforceable contract. An acknowledgement of risk gives your business some protection and evidence that the risks were understood by a guardian.
If you’re the parent of a minor, ensure you’re sending your child to businesses that consistently demonstrate safe practices. While risk can be inevitable, businesses that have strict safety measures in place are the best choice. If your child has been injured and you believe a business is liable, contact a lawyer today.
Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
