League and Williams Lawyers

Author: Janice Williams

  • Divorce Dispute: Spousal Support Payments

    Divorce Dispute: Spousal Support Payments

    A Vancouver couple divorced after 17 years of marriage, and later had a dispute over the spousal support payments they had agreed to in their divorce agreement. After the divorce, their three children spent most of their time living with their mother. As outlined in the divorce agreement, the father was to pay child and spousal support to the mother. For nearly 14 years, they followed the agreement according to its terms and conditions, until the ex-husband decided to dispute the agreement. He made a case that he should stop paying spousal support and receive a refund for past payments.

    What is Spousal Support?

    One spouse pays spousal support (or alimony) to the other over an agreed to period of time after a divorce.

    After a divorce, it’s common for one party to pay spousal support to help both parties maintain their ‘normal’ lifestyle. In this case, at the time of the divorce, the husband earned $185,000 per year, making the wife entitled to $1,400 per month in spousal support. The wife was not working at the time as she was taking care of their children, full-time. Besides the spousal support, the wife received child support payments of $2,672 per month and 60% of the family’s assets.

    According to the Divorce Act, spousal support must satisfy the following criteria:

    1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
    2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
    3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and,
    4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

    The Original Divorce Agreement

    The couple’s divorce agreement specified that one spouse would continue to pay spousal support until they established a new agreement. The earliest that the spousal support payments could be adjusted was Feb. 1, 2007, three years after the date of signing the document. Neither of the two parties had chosen to have the spousal support adjusted on this date, or any date thereafter.

    Almost 14 years after the signing of the divorce agreement, in August 2016, the ex-husband claimed that he misunderstood their agreement. He assumed that the spousal support was to be terminated on Feb. 1, 2007, not the date of when they could renegotiate. He argued that the payments should be discontinued. Further, he argued he should be reimbursed for the excess spousal support he had been paying since Feb. 1, 2007.

    The judge declared that the ex-wife still had a right to the spousal support, and a misunderstanding of the agreement by the ex-husband didn’t mean it should be enforced as he understood it. The ex-husband was to continue to pay the spousal support until October 2021.

    Was the Ex-Wife Entitled to Even More Spousal Support?

    The ex-wife argued during the trial that she deserved more than $1,200 per month in spousal support. At the time of the trial, an expert witness estimated the ex-husband’s annual income to be $1,200,000, a significant increase from the $185,000 he was earning when they signed the agreement. The ex-wife argued that this was partially because of the sacrifice she made to withhold her career and care for the children. He countered this by stating that the skills and abilities he learned had no connection to their past marriage whatsoever.

    Guidelines on Spousal Support

    The SSAG is not the law; however, BC judges use it as a reference point in spousal support disputes.

    According to the Spousal Support Advisory Guidelines (SSAG), section 14.3 states that “some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should by how much”. It all depends on the length of the marriage, the rules adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job versus promotion with the same employer, or career continuation versus new venture).” Keep in mind that the SSAG is not the law in BC, but judges use it to help base their decisions.

    The judge decided that the ex-husband’s career and skills he acquired during his employment change couldn’t be attributed to the marriage. The judge determined that the wife ‘made no contribution’ to his training or business.

    The trial judge decided not to make any changes to the divorce agreement, except for setting a firm termination date for the spousal support in October 2021. Both parties lost their arguments in this trial; however, the ex-wife went on to later appeal the judgement.

    The Appeal Judge Thought Otherwise

    In the appeal trial, the court found a mistake of law with the previous judgement. The judge determined that the courts “must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law.” While the wife may have not explicitly contributed to the husband’s newfound success, she still limited her ability to pursue her own career. The couple made “a joint investment in one career.” While she was taking on the caring responsibilities in the family, she was unable to further pursue a career of her own. She argued that if she chose not to do this, she would have a higher-paying job than she currently has now.

    The judge granted the appeal. The Court noted that according to the SSAG, the original $1,400 per month that she was receiving was much lower than suggested – the spousal support should have been in the range of $2,947.89 – $3,930.51. Using this approximation, the wife could expect a monthly support payment closer to $20,000 due to the ex-husband’s new income. The appeal judge removed the termination date for the payments, initially set for October 2021.

    How You Can Learn from This Case

    To learn from this case, we encourage you to consider a prenuptial agreement before marriage. A properly documented prenuptial agreement could save you countless hours of stress in the unfortunate situation of a divorce. Further, writing a prenuptial agreement with your partner is a good opportunity to reflect on and plan for the future.

    Looking for more information? Read our page on divorces and the law in BC.

    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.

  • Inter Vivos Gifts: An Estate Planning Tool

    Inter Vivos Gifts: An Estate Planning Tool

    When reading about gift-giving in the context of estate law, you’ve probably come across the term inter vivos several times. An inter vivos gift is property that the gift-giver transfers while they’re living. The opposite of an inter vivos gift, a testamentary transfer, is a gift given after the gift-giver has passed away. Typically, these transfers are made through instructions in someone’s will. While people traditionally think only of testamentary gifts when they’re estate planning, both types of gifts play an important role in an effective estate plan.

    Legally Binding Gifts

    Before choosing to give an inter vivos gift, it’s important to understand when a gift is legally binding and when it’s not. Gift-givers should be careful that they’re giving valid gifts, especially when gifting large assets such as land. In order for an inter vivos gift to be legally binding, there are two requirements:

    1. The donor must have intended to make a gift, and
    2. The donor must have delivered the gift to the donee.

    Although these criteria seem straightforward, they can complicate gifts of real estate. This is because the gift-giver doesn’t necessarily ‘deliver’ the gift. Sometimes, testators have a clear intent to make an inter vivos gift but just don’t get around to finalizing the transaction before their death. In this case, the gift will not take effect and the asset will fall into the estate. For more information, read our blog post on imperfect gifts.

    Benefits of Inter Vivos Gifting

    Gifts are not taxable in British Columbia.

    Inter vivos gifts are an extremely powerful estate planning tool in BC. When the gift-giver gives an inter vivos gift, the asset is no longer part of their estate. This saves on probate fees and the donee will receive the asset much sooner than if it went through the estate administration process. Further, there can be great sentimental value in gifting before one’s death as they’re able to watch their loved ones enjoy the gift. For more information, read our blog on the advantages of gifting before death.

    Types of Inter Vivos Gifts You Can Make

    Inter vivos gifts can be basically anything you choose – you can gift cash, financial accounts, real estate, or even joint tenancy in a property. The gift of joint tenancy is a particularly useful tool because of real estate’s high value. You can only establish joint tenancy during your life, and never explicitly as a testamentary gift. People often associate joint tenancy with spouses living together in a house. However, you can use joint tenancy to effectively create a succession agreement with the testator’s beneficiaries.

    Joint Tenancy and Resulting Trusts

    When people transfer property in joint tenancy, a common problem is the lack of clarity about their intentions for the property. There is a presumption that a transfer in joint tenancy is not made with the intent to gift, rather with the intent to be held in trust – the presumption of resulting trust. In other cases, it can be unclear whether the testator intended for the joint owner to be gifted the property upon their death. For joint tenancy gifts and all gifts in general, it’s important to be extremely clear about what your intentions for the asset are. In many cases, it’s a good idea to document your intentions in case there is a dispute over your estate after your death.

    When preparing an estate plan, you should always consider the possibility of naming inter vivos gifts to your loved ones. If you’re unsure how you might give gifts before your death, contact an experienced estate lawyer today. We will work with you, ensuring the perfect estate plan for your situation, maximizing your estate’s value and your loved one’s prosperity.

    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.

  • Storing a Will Electronically: Good or Bad Idea?

    Storing a Will Electronically: Good or Bad Idea?

    With the world quickly becoming more and more digital, people are constantly looking for new ways to go paperless. For many documents, it’s easy and safe to keep a copy on your computer, phone, or in ‘the cloud’. These methods ensure that will writers don’t lose their documents and can access them easily. When it comes to the electronic storage of wills, however, challenges can arise. Because it can be difficult to prove the authenticity of an electronically stored will, executors may find it challenging to have it cured. According to section 37 of the Wills, Estates and Succession Act (WESA), a valid will in BC is:

    1. In writing,
    2. Signed by the will-writer, and
    3. Witnessed by 2 or more people.

    These requirements make proving the legitimacy of an electronically stored will extremely difficult. Ultimately, a digital will cannot be a valid will without help from the courts. However, this doesn’t mean that digital evidence, electronic testaments and invalid wills are completely irrelevant for estate administration. When a document is considered an invalid will, but proves to be indicative of the will-writer’s final intentions, it can be cured into a valid will. Further, storing copies of a will, both physically and digitally, can be beneficial in some circumstances.

    Curing Digital Documents

    Not only professional documents, but also emails, text messages, notes, or voicemails could potentially be cured into valid wills.

    BC’s estate laws aim to respect everyone’s final wishes and intentions. If someone doesn’t follow the proper will-writing procedures, BC courts can cure a testamentary document into a valid will. To clarify this process, let’s look at an example.

    A woman, Ellen, writes a valid will in 2018 with the assistance of a will-drafting lawyer. In 2020, Ellen writes a new will on her own using Microsoft Word. She follows all the proper procedures to write a valid will, but never prints it or creates a physical written copy. Ellen also makes it clear in this electronic will that she intends to revoke the will she made in 2018. It’s clear that the will from 2020 is more indicative of Ellen’s final intentions than her 2018 will. The courts may be able to cure the Microsoft Word document into a valid will.

    Statutory Law

    According to section 58 of the WESA, the courts can cure the document into a valid will if it represents:

    1. The testamentary intentions of a deceased person,
    2. The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
    3. The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

    IIn the end, the court can cure Ellen’s electronic will and use it to administer her estate, but at what cost? The estate had to undergo the legal process of curing the testamentary document and appear before the courts to finally realize Ellen’s intentions. While creating this electronic document was better than doing nothing, Ellen could have avoided the extensive legal process if she had simply printed the will and had it properly signed and witnessed. Read our blog on curing testamentary documents for more information.

    Storing Copies of the Will Electronically

    Sometimes, if the original copy of the will is missing, a copy can serve as the final will left by the testator. If the original copy of the will is missing, the law presumes revocation. This means that the law presumes that the testator intended to revoke the will – either by intentionally destroying it or that they did not want it to be found. If an electronic copy of the will is to be used as the final will, this presumption must be rebutted. The claimant must prove, on a balance of probabilities, that the will writer did not intend to destroy the original copy of the will, and it was lost inadvertently. If they are successful, they then must prove the copy is a valid will (or can be cured into one).

    When the original will is simply lost, having a copy of it stored electronically can be helpful. Read our blog on when the original copy of a will is required for more information.

    Issues Will Writers Should Consider

    While it might seem easy to have the courts cure electronic wills into valid wills, the process will be much more extensive than one may expect. Involving the courts in any dispute will lengthen the process, often making it more expensive at the same time. We always recommend taking measures to prevent any estate disputes from arising before your death. Storing a copy of your will electronically can be a good idea as a back-up plan, but it’s best to keep the original copy of your will in physical form. If you’re unable to keep your will in a safe place, some law firms are able to keep your will safe until your passing.

    If you’re unsure of the best way to store your will, contact an experienced estate lawyer today. We will work to mitigate any risks of estate disputes involving your estate by advising you the best ways to properly store your will.

    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.

  • Testamentary Capacity: How Capacity to Write a Will is Assessed

    Testamentary Capacity: How Capacity to Write a Will is Assessed

    To write a valid will in BC, the writer must have testamentary capacity at the time of writing the will. As described in the Wills, Estates and Succession Act, someone with testamentary capacity is defined as a “person who is 16 years of age or older and who is mentally capable of [making a will].” More specifically, according to the judgement in Banks v. Goodfellow (1870), for a will-writer to have testamentary capacity they must be:

    1. Capable of understanding the act of making a will and its effects;
    2. Capable of understanding the nature and extent of their property relevant to the disposition;
    3. Capable of evaluating the claims of those who might be expected to benefit from [their] estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
    4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and,
    5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

    In short, testamentary capacity is your ability, or lack thereof, to understand the significance of your will. While these criteria might be clear, it’s often unclear how one can prove/disprove the cognitive capacity of another. In this blog, we’ll go over the most common ways professionals assess capacity and why.

    Capacity to Write a Will

    Testamentary capacity is only one of many requirements for valid wills.

    The test for testamentary capacity is not a medical test, it is a legal test. This means that a judge or lawyer is able to determine whether a person has the testamentary capacity or not. A doctor doesn’t have authority in this respect, however, it is common to consult with medical experts during the process. In some cases, close family and friends can be helpful in determining a person’s mental capacity. People close to the testator are typically familiar with their mental state and understand if their mental capacity has deteriorated.

    There are many different definitions of mental capacity. People often have the legal capacity to do certain things, but not others. For example, one could be mentally capable of writing a valid will, however, incapable of appointing a power of attorney. The capacity to write a will is one which specifically fits the criteria outlined above.

    Lawyers Assessing Capacity

    Before a drafting lawyer prepares a will, they’re responsible with ensuring the testator has the appropriate capacity to do so. A drafting lawyer is not to prepare a will for someone who doesn’t have the testamentary capacity to write a will. This is because a person who doesn’t have the testamentary capacity to make a will is someone who doesn’t understand the implications of the will – they’re unfit to make decisions regarding their estate assets. Lawyers will sometimes do assessment tests themselves, asking questions to determine where a person’s mental capacity stands. It’s rare for a lawyer to consult a medical professional to evaluate their client before writing a will for them, but it can be necessary in some instances.

    Depending on the context and bequests the person is wishing to make in their will, a lawyer can sometimes detect incapacity. When a testator is making a rather controversial will – i.e. disinheriting one or all of their children without strong or logical reason – it may be grounds for suspicion of incapacity. In some cases, such as will-writing for an elderly person, the lawyer will use a questionnaire, asking questions during the drafting process. Lawyers might ask questions along the lines of:

    • Approximately, what is your estate worth?
    • Why are you choosing the beneficiaries you’re choosing?
    • Why are you choosing the inheritances you’re choosing?
    • Do you have any medical conditions that might be impacting your decisions?

    Generally speaking, drafting lawyers will ask questions that can help to prove the above criteria for testamentary capacity.

    Will Writing Without a Lawyer

    Since it’s ultimately up to the will drafting lawyer to determine capacity, wouldn’t this mean that someone who writes their own will can write it when they’re incapable? Technically, the answer is yes, however, the will would likely be challenged by interested parties, usually children, who are unhappy or otherwise concerned by it. In this case, there would have been no one around at the time of the will being written to determine the person’s mental capacity. This could warrant a suspicious circumstance and be grounds for challenging the validity of the will. For more information, read our blog on challenging for testamentary capacity.

    If you would like a lawyer to help draft your will and ensure you have the testamentary capacity to write a valid will, contact an experienced estate 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.

  • Marine Accident: Collision Regulations in Canada

    Marine Accident: Collision Regulations in Canada

    The Collision Regulations (ColRegs) under the Canada Shipping Act 2001 serve an important purpose in promoting the safe navigation of vessels in international, coastal and non-coastal waters. Like laws governing vehicles on land, these rules of the sea reduce the risk of collision by requiring predictable behaviour. Mariners expect other mariners to follow the ColRegs. These expectations, if met, lead to fewer collisions and greater efficiency in shipping. The vast majority of fatal marine accidents occur on commercial vessels, specifically in the fishing industry.

    Marine Collision in Québec

    In an incident at the Gouin Reservoir in Québec, a group of fishermen in a rowboat were hit by a larger boat. The fishermen were injured and their boat was severely damaged. As the larger boat was headed directly towards their rowboat, the fishermen stood up, waved their arms, whistled and shouted to get the attention of the boat’s captain. They had noticed the boat heading straight towards them from an estimated 1.5 km away. The rowboat was anchored in place, and would not have been able to move out of the way to avoid collision.

    The boat continued in its path, without any attempt to slow down or avoid the rowboat. In the last moments before impact, the fishermen jumped out of the rowboat and into the water. A third party that was also fishing, noticed the collision and headed to the scene to rescue the fishermen. They saw one of the fishermen at the bottom of the boat screaming in pain. He was eventually transported to the hospital, where he stayed for two days. He had injured his leg and shoulder, and claimed his shoulder continued to cause pain for four years after the incident.

    Federal Maritime Law: Who has the Presumption of Fault?

    Federal maritime law applies to all marine collisions in Canada.

    Since this was a collision between boats, federal maritime law applied to the case. The fishermen chose to sue the boat’s driver for the property damage and injuries sustained.

    When a moving ship collides with a stationary ship, the moving ship is presumed to be at fault. To defend this claim, the defendant had the burden of reversing the presumption of fault. The defendant argued that he didn’t see or hear the fishermen in the rowboat. Even after the collision, he thought that it was simply a rock or tree trunk that he hit. He claimed that since the boat was aluminum, the boat was difficult to see and the fishermen were not wearing brightly coloured life jackets to maximize visibility. The third party witness explained in court that the visibility was good at the time of the collision. They claimed that they had easily seen the small rowboat from approximately 1 km away.

    The Court’s Opinion

    The judge ruled that the defendant failed to fulfill his obligations according to the ColRegs. The defendant did not prove that this collision was the plaintiff’s fault, or that it was an unavoidable accident. The defendant caused the accident by not paying close attention, and wasn’t using the appropriate equipment to avoid such collisions. He wasn’t using GPS tools which could have detected the rowboat and alerted him before the collision. The court deemed the defendant’s negligence as the sole cause of the collision and awarded the plaintiffs about $50,000 in damages.

    How You Can Learn from This Case

    While the victims of the collision won their case and received compensation, it’s always preferable to avoid a collision all together. For those planning fishing trips with their friends, we encourage you to wear brightly coloured life jackets at all times on the water. Equipping yourself with loud whistles, or an air horn can help to prevent a marine collision. If you’re someone who operates a large vessel, even if you’re on a familiar route, always use the proper equipment to ensure no accidents take place. It can be difficult to spot small rowboats, however, with the proper equipment and awareness it should not be a problem.

    Looking for more information? Read our page on the basics of marine law.

    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.

  • Keeping Bequests Out of In-Law’s Hands

    Keeping Bequests Out of In-Law’s Hands

    Parents are often concerned about how their children will use their inheritances. It is common to worry about assets falling outside of the family. This often happens as a result of a child’s divorce after the death of their parents. For concerned parents, a traditional gift in a will can likely to fall short of your estate planning needs. Protecting your child’s inheritance from being split with their ex-spouse presents a challenge for will writers. In this blog, we’ll discuss ways parents can ensure their child keeps their inheritance and uses it appropriately.

    A Traditional Gift to a Child

    The most straightforward way to give a gift in a will is to simply name a beneficiary for an asset. After the will writer passes away, the beneficiary will own the asset, and can do whatever they wish with it. For example, if the asset was a house, they could create joint tenancy ownership with their spouse, sell the home and use the proceeds to pay off their spouse’s debts. The original owner of the home has no assurance that the asset will stay in the family. An outright gift is not the best option for parents who are worried about a child’s inheritance leaving the family.

    Often, parents trust that their child will keep the asset in the family. However, the asset or its value might leave the family even if the child doesn’t intend for it. If the child passes away shortly after their parents, the inheritance would pass through their estate to another beneficiary. The child didn’t do anything against their parents’ wishes, but the outcome was still undesirable from the parent’s perspective. For these reasons, giving an asset outright to a child is usually not a good idea if you wish to ensure that the asset stays in the family.

    Trusts for Assets, Trusts for Funds

    A trustee is appointed to safeguard the assets of a trust for the benefit of the beneficiary, according to the terms of the trust agreement.

    By creating a trust, parents can have much more control over an estate asset and its use. They can create specific terms for how and when the appointed beneficiary will receive the contents of the trust. For example, if a family cabin is held in trust, parents can specify the cabin is to be shared equally by their children. They can even specify time periods in which each child can use the property.

    The parent could also create a purpose trust, where trust funds are only to be used for a specific purpose. For example, the parent could leave $10,000 to their child to be used for university tuition. Parents can create any rules or conditions they wish, and the beneficiary must comply in order to access the funds. The trustee for the account will ensure that these rules are followed while distributing the funds to the beneficiary. Having assets in a trust account will keep them in the family, assuming conditions have been made to ensure this.

    Reminders for Will Writers

    Ultimately, parents are able to ensure their estate and inheritances are kept in their family by using a detailed and tailored estate plan. While many might trust their children to follow their wishes, sometimes it’s out of the beneficiary’s control and inheritances can end up being used in ways you would not wish for, or even imagine. It’s always best to be prepared for any unusual circumstance and trust accounts can be the best method available to do so. By using trust accounts in a will, conditions that ensure assets remain in the family and are used as intended can be created.

    If you require assistance creating your estate plan, contact an experienced BC estate lawyer today. We will ensure your estate is handled exactly as you’re expecting, ensuring that your inheritance is kept in the family under all 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.

  • Missing Will: Executor Can’t Locate the Will, What Now?

    Missing Will: Executor Can’t Locate the Will, What Now?

    It’s common for people to desire a sense of privacy and confidentiality when they prepare their last will and testament. Some people keep their will hidden to avoid upsetting loved ones with their inheritance choices. If no one knows the will’s location and it remains unfound after the writer’s death, problems can arise. We’ve seen many cases where executors have searched everywhere for the deceased’s will with no success. If the will is missing, they won’t know how to administer the estate in line with the testators wishes.

    Is the Will Even Required?

    The courts need the original will to grant probate. This means that the executor needs to provide the original will to have the will verified and begin administering the estate. Further, even for a will that doesn’t require probate, the executor needs the will in order to know how to distribute the estate. When the will is completely lost or missing, the law presumes that it doesn’t exist and the testator died without a will.

    Presumption of Revocation

    There is no presumption of revocation if the will-writer was not the last person in possession of the original copy of the will.

    In BC, if we can’t find a will, we assume the writer intentionally destroyed it or hid it. This is the presumption of revocation. Although the document can be confidential, will writers should not hide their will.T he executor should retrieve it easily after the writer’s death. Will writers should notify their executor in writing or leave the will in an obvious location, like a safety deposit box.

    As an executor, if you can’t find the original will, there may still be a chance to “save” the will if you have a copy available.

    A Copy of the Will is Available

    If you have a copy of the will, you can attempt to rebut the presumption of revocation if you can prove that there was no intention to destroy the will. Usually, this means you will need to provide reasons and evidence as to why the will has gone missing and that it was not the writer’s intention for this to happen. To prove this, some evidence that can be used includes:

    • Past conversations with the will-writer,
    • Other documents written by the will-writer,
    • The will-writer’s relationships with the beneficiaries of the will,
    • An event causing other documents/property/assets to be destroyed that may have caused the destruction of the will as well, or
    • The wording in the copy of the will.

    You must also prove the will’s copy is legally valid or curable if you successfully rebut the presumption revocation. Once proven, the courts can issue a grant of probate and the executor can begin to administer the estate.

    No Copies of the Will are Available

    If the original will is missing and no copies exist, reproducing the will-writer’s instructions is impossible. Because of this, there aren’t any legal remedies to fix or cure the will. You may be able to rebut the presumption of revocation, however, there won’t be another testamentary document to cure into the testator’s final will. In the case where there aren’t any copies of the will, the will-writer will have died intestate and their estate distributed according to intestate laws.

    How to Prevent a Will from Going Missing

    As a will-writer or future will-writer, to prevent this from happening with your will, the solution is to put the will in a place that is safe but not hidden. We understand that the contents of the will may feel confidential or controversial for loved ones; however, they’re eventually going to see the contents of your will and trying to hide the document will not help anyone. At the very least, your executor should be aware of where the will is and how they can access it. You should store the will where it won’t get accidentally destroyed or moved. Some spots to store a will securely include:

    • In a locked filing cabinet,
    • In a fire-proof safe,
    • In a safety deposit box at the bank, or
    • At the will-drafting lawyer’s office.

    When choosing to keep your will in a locked cabinet/safe, be sure that the executor will have access to the key. If the safe’s contents are inaccessible, the courts may presume revocation.

    If you can’t find the will written by a loved one, contact an experienced estate lawyer today. We can help you to rebut the presumption of revocation or advise you on what to expect from the intestate distribution process.

    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.

  • Ethical Wills: Your Legacy Estate Plan

    Ethical Wills: Your Legacy Estate Plan

    People usually have a good understandings of the basic principles of writing a will. Your will allows you to ensure your assets are managed according to your wishes after your death. However, there are many different types of testamentary documents will writers can create to express a wide range of wishes. Another less well known type of will is the living will. A living will specifies someone’s wishes for the management of their health if they become incapable of making decisions. Another type of will that is not as well known is the ethical will – a document specifying personal values and beliefs. An ethical will is not a legally binding document like a last will and testament or living will is, rather it can be seen as a personal letter to loved ones.

    The term “will” is a bit misleading for ethical wills as it is really an informal letter that is not legal in nature. There are no requirements for a valid ethical will as it is not legally enforceable. If a will writer includes directions of how to distribute their estate assets in their ethical will and does not create a valid will, they will be considered intestate.

    The Purpose of an Ethical Will

    Some people choose to share their ethical wills with loved ones before they pass away.

    An ethical will doesn’t discuss money, assets or property like a last will and testament. The ethical will discusses values, beliefs, morals, ethics, traditions, memories, stories, and other ideas the writer considers important. The purpose of writing an ethical will is to preserve your own history, communicating your values and beliefs with loved ones following your death. The last will and testament is an awfully technical and dull document that doesn’t reflect the character or personality of the person writing it. With the ethical will, will writers can express their feelings and views of life, beyond their estate assets.

    The ethical will is also a way to help console loved ones, giving them some final words and memories to remember you for. Another way to view it is as a way to leave behind your legacy – a legacy letter. In a way, an ethical will can be a goodbye letter to your loved ones.

    What Goes Into an Ethical Will

    Since an ethical will isn’t a legally binding document, it’s up to the will writer to include anything they wish. Some take the route of writing a personal letter, while others prepare an entire journal-style document. Further, it can be in any format. Some items that one might want to include in their ethical will include:

    • Accomplishments and achievements,
    • Memories,
    • Cultural values,
    • Personal values and beliefs,
    • Letters for forgiveness,
    • Stories,
    • Histories or
    • Family recipes

    Should You Prepare One?

    The question you need to ask yourself is: do you have a thought or message you want to pass on to future generations in your family? It can be easier for some to articulate their legacy and thoughts through an ethical will rather than in casual conversation. By leaving a document behind, it creates a sense of formality and authority, which can help to cement the purpose and meaning of your message. Writing an ethical will can help some to achieve a sense of closure and look at it as an opportunity to reflect on the happy moments of their lives.

    For many people, this is an extremely important part of their estate plans. In the end, the ethical will can be as easy or as difficult as you wish to prepare. The document can be fully personalized, without the assistance of anyone – you don’t require a drafting lawyer or anyone to help you prepare it.

    If you need help preparing any part of your estate plan, contact an experienced estate lawyer today. We can help to ensure your estate is handled as you wish and that your legacy lives on for generations to come.

    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.

  • In Terrorem Clauses: Preventing Estate Litigation in Your Will

    In Terrorem Clauses: Preventing Estate Litigation in Your Will

    Sometimes, will writers are aware that a gift in their will is going to cause conflict between loved ones and could lead to litigation after their passing. Will writers can create an in terrorem clause to help prevent legal conflict arising from their will. This is a clause in a will that makes a gift void if the beneficiary starts legal action challenging the will. By having an in terrorem clause in your will, you can mitigate the chances of will challenges from beneficiaries. An in terrorem clause can be valid in BC; however, there are specific guidelines.

    What It Looks Like

    An in terrorem clause is a provision explicitly revoking gifts to any beneficiary who initiates litigation challenging the will. The clause details the redistribution of revoked gifts. For a simple example, the will could state something along the lines of,

    I declare that any beneficiary of the will shall have any benefits of the will revoked if they begin any litigation related to the will. Any revoked gifts under this provision are to fall into the residue of the estate.

    While this seems straightforward, BC has strict laws on this matter. The courts have been quite particular when considering in terrorem clauses. In BC, there has yet to be a case where the courts have ruled an in terrorem clause valid.

    When an In Terrorem Clause is Void

    People sometimes refer to an in terrorem clause as a “no contest” or “poison pill” clause.

    The case of Kent v. McKay (1982) clarifies exactly when an in terrorem clause will be voided. The three criteria for voiding an in terrorem clause are:

    1. The legacy must be of personal property or blended personal and real property.
    2. The condition must be either a restraint on marriage or one which forbids the donee to dispute the will.
    3. The “threat” must be “idle”; that is the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids.

    The third condition is where most legal disputes arise. Essentially, an in terrorem clause is void if it’s contrary to public policy or doesn’t detail how to redistribute a revoked gift.

    Examples in BC Case Law

    In BC, there have only been a few cases disputing the validity of an in terrorem clause. Looking at the case of Kent v. McKay (as described above), the will writer had an in terrorem clause in his will which was deemed void. The will writer used the clause to prevent his children from taking action against the will. The clause restricted the children’s rights under the Wills Variation Act (WVA), so it was contrary to public policy. Under WESA and the old WVA, children and spouses are entitled to adequate provision for the proper maintenance and support of their lives. It’s important that they’re able to exercise this right if the will doesn’t make adequate provision for them. In this case, the clause may have been valid if it was not applied to the will writer’s children.

    In the case of Bellinger v. Fayers (2003), the in terrorem clause was invalid because it lacked a gift over. The clause was an idle threat. In the will, the clauses stated

    “IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

    This directly went against the third criteria. If the provision said that any revoked gift will fall into the estate’s residue, then it might have been valid.

    The Best Way to Avoid Will Challenges

    While there are conditions where an in terrorem clause would be considered legally valid, the clause won’t do anything to ease any tension or anger amongst loved ones. It can be hard, but it’s best to simply talk with loved ones and explain to them why you’re making the provisions in your will that you’re making. Hearing from the will writer and understanding the reasoning behind a bequest is usually enough to ease a lot of tension. Often, loved ones want to have their opinions and voices heard and by talking with the will writer can ease this frustration.

    Further, to avoid any legal challenges to your will due to poor will writing or preparation, seek advice from an experienced BC estate lawyer. We can help to mitigate any risks of will challenges, ensuring your final wishes are respected.

    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.

  • Rights and Responsibilities of a Power of Attorney

    Rights and Responsibilities of a Power of Attorney

    As people get older, it is generally recommended that they appoint a power of attorney (POA). Without fully understanding the extent of the duties and responsibilities, people often accept the role, intending to be as helpful as possible during difficult times in their loved one’s life. Generally speaking, the power of attorney is responsible for making financial and legal decisions on the person’s behalf, in the case where they become incapable of doing so themselves. Usually, the attorney can make any financial or legal decision the person could have made themselves. Before accepting the role of the Power of Attorney, it is important to understand the role (what you might be expected to do) and the rights you have available to you as the person’s attorney.

    For the sake of this blog post, we’ll be talking about an enduring power of attorney agreement. This is when the person creates the agreement while they’re still mentally capable. The enduring power of attorney agreement gives the appointed attorney the abilities of a power of attorney in the case that the person becomes incapable of doing so. If the person never becomes mentally incapable, the power of attorney agreement essentially does nothing.

    Duties and Responsibilities

    The Power of Attorney Act specifies exactly the duties that an attorney is agreeing to when signing the agreement. According to s.19, the underlying principles and philosophies an attorney must adhere to are to:

    • Act honestly and in good faith,
    • Exercise the care, diligence and skill of a reasonably prudent person,
    • Act within the authority given in the enduring power of attorney and under any enactment, and
    • Keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.
    People are able to appoint and have multiple POAs at the same time.

    In short, the attorney must act honestly and in the best interests of the person they are representing. Further, they must keep detailed accounts of any decisions they’re making on the person’s behalf. In some cases, a decision an attorney must make isn’t always the best financial decision. The attorney must take into account the person’s values and beliefs for any decision they make. More specifically, s.19 states that the attorney must do the following:

    • To the extent reasonable, give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult;
    • Unless the enduring power of attorney states otherwise, invest the adult’s property only in accordance with the Trustee Act;
    • To the extent reasonable, foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult;
    • Not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except if the disposition is necessary to comply with the attorney’s duties;
    • To the extent reasonable, keep the adult’s personal effects at the disposal of the adult.

    Rights and Powers

    While the attorney is able to make any financial or legal decisions that arise (barring restrictions in the agreement), there are some cases where the attorney can act proactively or completely at their own discretion. An example could be electing to give gifts or loans on the person’s behalf. The power of attorney is sometimes in a position where they must do a lot of the estate planning for the incapable person and often times this means gift giving before their death. It’s important to understand that a power of attorney does not have any authority to make a will or change an existing will on the incapable person’s behalf, though the attorney can handle some estate related financial tasks.

    Can an Attorney Give Up Their Role?

    For some attorneys, it’s a good idea to hire a professional to assist in some areas of their job. In some cases, the attorney no longer wishes to continue in this position as the person’s attorney. At any time, the attorney is able to resign as the power of attorney and relieve themselves of all the duties of the power of attorney. To do so, a letter of resignation must be given to the person and any other people acting as a power of attorney.

    Another reason one might wish to resign is when the person modifies the POA agreement. The person who creates the agreement can, at any time, modify or revoke the agreement and the attorney must comply with their changes. Further, they don’t need to provide any reasoning for their decision. If the attorney doesn’t agree with the changes, the only option would be to completely resign as the attorney. For a full list of attorney powers, see s.20 of the POA Act.

    In the end, the role of a power of attorney can be a difficult task at times. It can be stressful managing one’s own financial and legal affairs, let alone a second person’s. If you are unclear of the role/responsibilities of a power of attorney, contact an experienced estate lawyer today. We can help ensure that you are properly prepared to take on the position as a person’s power of attorney.

    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.