League and Williams Lawyers

Author: Janice Williams

  • Becoming a Committee in Place of a Power of Attorney

    Becoming a Committee in Place of a Power of Attorney

    Old age, injury, and mental illness are some factors that can leave an adult incapable of making legally binding decisions. Before a person loses capacity, they can name a power of attorney and create a representation agreement in their will. The power of attorney is able to make financial and legal decisions on the person’s behalf. The person named in a representation agreement can make healthcare and living decisions on the incapacitated person’s behalf. If a person becomes incapable before appointing representatives, a loved one may need to apply to become their committee.

    Committees

    There are two types of committees, each with different abilities and obligations. A committee of estate is somewhat similar to a power of attorney. They are able to make decisions on any financial and legal matters on the incapable person’s behalf. A committee of person is someone who can make health care and lifestyle decisions on the incapable person’s behalf. Committees have all the powers that the incapable person would have, in respect to the specified matters. For example, a committee of estate can pay the incapable person’s credit card bills or choose to invest their money. However, the committee of estate can’t make the decision to move the person to an assisted living care facility.

    What is Incapable?

    Appointing a committee is a last resort measure and can only be appointed when the person is legally incapable. As per section 2 of the Patients Property Act (PPA), a person is incapable of managing their affairs because of either

    1. Mental infirmity arising from disease, age or otherwise, or
    2. Disorder or disability of mind arising from the use of drugs.
    Committees must always act in the best interests of the incapable person.

    To be incapable under the PPA, a person must be incapable of managing their affairs or incapable of managing themselves. In some cases, this could mean the person is completely unconscious, unable to make any decisions. Or, it could be someone who has developed Alzheimer’s disease and can’t recall their banking or financial information consistently and accurately.

    In determining whether a person is incapable, the courts require 2 medical practitioners’ opinions on whether the person is legally incapable of managing their own affairs. The medical practitioners will consult with the person, conducting a full assessment of their mental ability to make decisions for themselves. Usually, the person applying to have the person ruled incapable must provide the affidavit evidence from the 2 different medical practitioners. There are two types of incapability that can be ruled, incapable of estate and incapable of person – each corresponding with the respective committee discussed above. People can be ruled both incapable of estate and incapable of person in some cases.

    Who Can Become a Committee?

    Under section 6 of the PPA, anyone can apply to be appointed by the courts as the committee. If multiple people apply, the courts will choose someone based on the best interests of the incapable person. When nobody applies, the Public Guardian and Trustee of British Columbia can be appointed. Essentially, when a person becomes incapable, there is always someone who can act on their behalf to ensure their affairs are not negatively impacted by their incapability.

    It’s always best to prepare for any unfortunate circumstances – in this case, that means appointing a power of attorney before it may be too late. Having a power of attorney will remove the involvement of the courts in having to elect a possible committee. If you need to apply to become a loved one’s committee of estate or person, contact an experienced estate lawyer today. We will help you through the process, ensuring the best for you and your loved one.

    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.

  • Financial Elder Abuse: How to Detect and Prevent It

    Financial Elder Abuse: How to Detect and Prevent It

    Unfortunately, elderly parents and grandparents can be easy targets for financial abuse as people try to take advantage of their elder’s mental state. Especially with estate-related matters, family and friends have been found to unduly influence the elderly, tricking them into distributing their estate against their true intentions. Elder abuse extends well beyond undue influence and can come in many different forms. It’s important for loved ones and family members to look out for the elderly people in their lives, ensuring that they’re not being abused financially or otherwise. With this blog we hope to bring light to some common forms of financial elder abuse to ensure that all elderly people can have their estate handled and distributed exactly as they’re intending.

    What Financial Abuse Looks Like

    Financial elder abuse is commonly caused by family members, close friends or caregivers who already have a bit of power and influence over the elderly victim. In many cases, the elderly isn’t fully understanding or aware of what the person is doing. Often, the elderly person is too trusting of his/her family and friends, assuming the best intentions when a suspicious scenario arises. Some examples of financial elder abuse are:

    • Unduly influencing an elderly person over estate-related matters;
    • Blatantly lying to an elderly person for personal gain;
    • Abusing power over financial accounts after being given access – such as using the elderly’s bank account to pay for their own expenses;
    • Abusing power as a power of attorney, committee or estate executor;
    • Forging the elderly’s signature to sign documents for them;
    • Theft of property; or
    • Using fraud to trick an elderly person into doing something not in their best interests.

    Essentially, financial elder abuse includes anything done by someone to gain financially at the expense of an elderly person by abusing their trust, mental capacity or lack of understanding. Financial abuse can happen to anyone; however, it’s most common in elderly people due to the nature of old age and estate assets.

    Detecting Financial Abuse

    According to a study done by the World Health Organization, 15.7% of elderly people are subject to some form of abuse, including financial abuse.

    While there are countless ways someone could attempt to abuse an elderly person financially, there are ways that family and friends can detect when financial abuse may be occurring. It’s not usually as simple as the victim speaking out about suspicious behaviour. Often times, the victim doesn’t fully understand that they’re being financially abused in the first place. Because of this, it’s up to the elderly’s loved ones to react when there are suspicious circumstances that could be financial abuse.

    Depending on your involvement with the elderly’s financial accounts or personal life, there are different ways to identify financial elder abuse. To list some general indicators of financial abuse,

    • Dramatic changes in the elderly’s financial position;
    • Assets or property that have suddenly gone missing;
    • Sudden and significant changes to the elderly’s will;
    • Friends or family suddenly being overly attached and invested in the elderly’s life, specifically their financial position;
    • Suspicious or out-of-character purchases/transactions;
    • Large cash withdrawals from the bank; or
    • An elderly person not fully understanding a significant financial situation going on in their life.

    How to Help in Situations of Elder Abuse

    If you’ve detected a possible case of financial elder abuse, we recommend contacting an experienced lawyer immediately. Depending on the severity of the abuse, there can be a civil or criminal case to be heard before the courts. To remedy the situation, courts can order the removal of a person of power such as a power of attorney or estate executor. In other cases, the person behind the abuse can be ordered to repay and compensate for damages caused. Even if the victim has passed away at the time of the abuse being revealed, it might not be too late to receive justice on the case.

    If you or a loved one has fallen victim to financial elder abuse, contact an experienced estate lawyer today. We will ensure that the victim will be compensated for any wrongs that they have suffered.

    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 deceased’s assets go missing: what can be done?

    When a deceased’s assets go missing: what can be done?

    The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:

    1. What the original estate was;
    2. All the assets received by the estate; and
    3. All the assets remaining to be distributed.

    Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

    Assets Missing from the Estate

    If an executor cannot account for an asset, they can, in some cases, be ordered to pay for this out-of-pocket.

    An estate inheritance can sometimes significantly change a beneficiary’s life. It can be very stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have attempted fraud or theft by taking parts of the estate and not accounting for them. In other cases, estate assets simply go missing because of the executor’s inattention to detail or carelessness. Beneficiaries should proceed cautiously when agreeing to the accounting details, ensuring all assets are properly accounted for. While they might feel powerless during the estate administration, beneficiaries do have rights to protect their interests. If a beneficiary is suspicious of the accounts or believes an asset is missing, they should take action. They can ask the executor to prove the accounts are correct in court.

    Passing of Accounts – Proving the Account’s Accuracy

    When a beneficiary disagrees with the accounts provided by the executor, they can formally challenge them. This process is called a passing of accounts. A passing of accounts is a court hearing where the courts review the account to determine if the challenge is reasonable or not. The courts will consider a broad range of detailed evidence to determine if anything “went missing” or was miscalculated. In most cases, the courts will need to review the entire account and all the transactions involved. If the executor was not diligent with their record keeping throughout the estate administration process making sure to track all assets and transactions, it can be difficult to prove the account is accurate.

    As described in the case of the Estate of Fannie Cleverley (2000), the purpose of the passing of accounts is to “determine whether the executor has exercised his duties under the will properly and in accordance with the law.”

    Tracing the Missing Asset

    In some cases, claimants have been able to prove that an estate asset has gone missing even though the executor is not in possession of that asset. The asset must then be traced in order to recover it from whoever possesses it. The person who is in possession of the missing asset will be ordered to return the asset to the estate where it will then be distributed as detailed in the will.

    Reminders for Beneficiaries

    Beneficiaries do not have a lot of control over the estate administration process, however, there are options available to them to ensure that the process is done correctly. If you’re a beneficiary who is suspicious that the executor may have stolen an asset from the estate, contact an experienced estate lawyer today. We can ensure that the estate is administered appropriately and the beneficiaries are given their fair share of the estate.

    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.

  • Slip and Fall Injuries: When the Business is Liable for an injury

    Slip and Fall Injuries: When the Business is Liable for an injury

    In North Vancouver, a tragic accident occurred at a Real Canadian Superstore when a woman slipped and fell, resulting in severe injury to her head. The case of Harrison v. Loblaws Inc. (2018) details the importance of safety procedures in businesses and when a store can be held liable for an accident such as a slip and fall.

    How the Slip and Fall Injury Occurred

    In this case brought to the BC Supreme Court, a woman was shopping at the Real Canadian Superstore (owned by parent company Loblaws Inc.). As she walked down an aisle, she failed to notice a large pool of liquid laundry detergent spilled on the floor. She stepped into the spill and immediately “extended her hands in a manner akin to what one does when surfing as she started to slide towards the end cap.” The woman eventually fell, hitting her eyebrow on the end cap of the aisle. Still sliding, the woman fell backwards, smashing the back of her head against the floor and landing in the pool of blue laundry detergent. A customer rushed to her aid, as there was blood underneath her. Her clothing and hair were soaked with the detergent. An ambulance arrived at the scene and she was taken away on a stretcher to the hospital. The woman had no recollection of the time between hitting her eyebrow to landing on her back. She also could not recall various pieces of the day, such as periods of time spent in the ambulance or at the hospital.

    The Injuries Sustained

    The woman was described as active, engaged, outgoing, fun loving and hard-working prior to the accident. After suffering this severe blow to the head, she was unable to work her job, her mood and personality have completely changed, and she suffers frequent headaches, dizziness, difficulty concentrating, and frustration. Unfortunately, this woman’s quality of life diminished significantly as a result of the injury.

    Why the Defence was Unsuccessful Against the Slip and Fall Injury Claim

    Businesses must take reasonable steps to keep their premises safe at all times.

    Under the Occupiers’ Liability Act in BC, to not be held responsible for injuries sustained on one’s property, the property owner or occupier must take reasonable steps to keep their premises safe. This act is meant to protect both parties involved in an accident. Customers can expect businesses’ premises to be safe and not have to fear for injury; and on the other hand, businesses can expect to be safe from liability in the event of an accident, assuming that they are acting in a reasonably safe manner.

    The woman sued Loblaws Inc. for negligence, claiming that the employees did not take the reasonable steps to keep the store’s premises safe. To summarize, Loblaws’ defence was that they had “sweep logs” for employees, where they specified which employee was responsible for cleaning each section of the store every hour. The sweep logs vaguely described the various areas of the store. The aisles had recently been moved and the logs did not accurately reflect these changes. Problems arose when the employees could not, in specific detail, describe each section of the store according to the sweep log. Because of this ambiguity in the sweep logs, the defence could not prove that the location of the detergent spill was recently monitored or cleaned.

    This Loblaws location also failed to follow the company’s incident reporting policy. The store manager did not fill out an incident report, keep a copy of the sweep log, record the names of staff that were working, take photos of the scene, produce a drawing of the scene or get a statement from each employee working at the time of the accident. This made it clear to the courts that, while Loblaws did have a policy in place to reasonably prevent accidents like this, the store failed to follow the policy for this accident.

    If the sweep logs accurately represented the premises and the manager closely followed the safety procedures following the incident, it may have been deemed that the business did take the reasonable steps to keep their premises safe. However, this was not the case and the judge ruled in favour of the woman. She received a total of $755,000 in compensation for

    • Non-pecuniary damages,
    • Past loss of income,
    • Loss of future capacity,
    • Cost of future care and,
    • Special damages.

    While the woman won this settlement, she still must live with the injuries she sustained, possibly for the rest of her life. We encourage everyone to be careful in their everyday lives and to be aware of where you are stepping. If you or someone you know has been injured in a slip and fall, contact an experienced injury lawyer to help.

    For more information, read our page on slip and fall injury claims in BC.

    Have a question about slip and fall claims 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.

  • Air Traveler Injury: When Passengers are Injured by Airline Crew’s Negligence

    Air Traveler Injury: When Passengers are Injured by Airline Crew’s Negligence

    A Penticton woman recently filed an air traveler injury claim against Air Canada for an injury she sustained during the boarding of an aircraft traveling from Vancouver to Penticton. The woman is a wheelchair user who always requests an aisle seat when she is flying because she needs to be able to move the armrests out of the way to safely transfer herself from the wheelchair and into her seat. Typically, the airline accommodates her request for an aisle seat; however, Air Canada denied her request for the flight on which she was injured.

    How the Injury Happened

    Because the woman’s aisle seat request was not accommodated, she had to rely on airline staff to assist in transferring from her wheelchair into her seat. Without first consulting the woman, two airline staff attempted to lift her by her arms into her seat.  This resulted in the passenger immediately screaming out in pain because she had suffered an injury to her shoulders and arms from being improperly lifted by the airline staff.  

    Injury Claims for Injured Airline Passengers – What can be Compensated?

    Air traveler injury claims include accidents during the process of embarking and disembarking the flight, even before getting on the aircraft.

    In BC, a person who is injured as the result of someone else’s negligence can claim damages by filing a civil lawsuit against the person or organization responsible for the injuries.  In this case, the injured passenger has filed a civil lawsuit against Air Canada, claiming that the airline crew were negligent when they lifted her by her arms to transfer her from her wheelchair and into her seat.  It is important to note that there are time limits for filing such a claim, called limitation periods.  In BC injury claims must be filed within 2 years of the person knowing that they are injured which is typically the date of injury.  Those who are injured negligently can claim compensation for the following damages:

    • Past health-care expenses,
    • Future health-care expenses,
    • Suffering,
    • Loss of enjoyment of life,
    • Loss of earnings, and
    • Monetary damages of family members who are responsible with caring for the injured.

    What Must an Injured Passenger Prove in order to be Compensated?

    From a legal perspective, airline injury claims are often different from most other injury claims because international treaties, such as the Montreal convention, may apply when the flight involved is international, for example.  If the flight is a domestic intra-provincial flight, as it was in this case, the claim is a standard injury claim.  In a standard injury claim, the injured person must show that airline was negligent and their injury resulted from that negligence. The injured passenger must also provide evidence of the magnitude of the damages that have been suffered.  The injured passenger’s lawyer works to collect evidence to demonstrate how the airline’s staff failed to operate in a reasonably safe manner and failed to meet the standards of safety for an airline in the circumstances.  The injured passenger’s lawyer will also work to collect information to help determine how the passenger should be awarded for their injuries.

    Want to learn more about air traveler injury claims? Find more information at https://league.dojogakure.com/our-services/bc-injury-claims/air-traveler-injury-claims or contact us for a free consultation. Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Drafting a Will: The Basics

    Drafting a Will: The Basics

    Before worrying about technical requirements of a valid will, it’s important that testators understand the basics. Will writing goes well beyond simply distributing assets to different loved ones, and testators should understand this. Some of the most important tasks of a testator include: appointing an executor, appointing legal guardians and representatives, choosing beneficiaries and choosing how to distribute the estate.

    Appoint an Executor

    Your executor is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying outstanding debts, selling estate assets, and distributing gifts to beneficiaries.

    The appointed executor(s) are usually entitled to receive executor’s fees as compensation for their work as executor.

    Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a part in the administration, and it helps to distribute the work load. Having multiple executors can reduce the risk of fraudulent behaviour, as each executor has to approve of the decisions made on behalf of the estate. However, it may give rise to other problems in the administration process if the joint-executors disagree on certain issues.

    Appoint a Guardian

    If you have children under the age of 19, it’s important to appoint someone who will be their legal guardian. If both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. When a guardian is not named in the will, the family courts have to appoint someone. To have full control, it’s always best to include an appointed guardian in your will.

    When appointing a guardian, it’s best to speak with family members to see who would be the best fit for your children. Depending on their age, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian is one of the testator’s siblings or another close family member.

    Plan For Future Incapacity

    Will-writers should appoint a power of attorney to handle their financial and legal matters should they become incapable. The circumstances under which the person can make decisions is dictated by the power of attorney agreement. The most common form is the enduring power of attorney. This is when you appoint an attorney to make decisions for you only if you become incapable in the future. The appointed enduring attorney only has the authority while you’re incapable of making the decision on your own behalf.

    A representation agreement is very similar to a power of attorney agreement. However, representatives are usually tasked with making health and personal care decisions. It’s often a good idea to appoint a representative and a power of attorney as part of one’s estate plan. Your estate plan can also include directions and for the representative to follow, ensuring they understand your wishes.

    If your estate plan doesn’t appoint a power of attorney or representative, a committee must be appointed if you become incapable in the future. Unlike the power of attorney or representation agreement where the parties simply create a contract, a committee must apply to the courts to be given authority. Since this is a court process, it will often be lengthy. Also, the incapable person would have little say in who applies and becomes their committee acting on their behalf.

    Pick Beneficiaries

    Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and children in their will. In some cases, parents can have valid reasons for disinheriting a child which allow the testator to override this provision.

    Some testators choose to only name their children and spouse as beneficiaries, while some testators name close friends, charities and relatives as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

    Distribute the Estate

    Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them and distribute the funds). When gifting a large asset like a house, it can bring along many responsibilities and expenses for the beneficiary. It’s a good idea to work with the beneficiary and understand their position on receiving the gift.

    Sometimes it’s easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case, as families often have assets that they want to pass down for generations to come. In the end, it’s at the discretion of the testator how they choose to distribute their estate.

    The Formalities of a Valid Will

    By law, you do not need a lawyer to draft a valid will in BC – you can make your own. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

    When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

    Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed away.

    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.

  • Picking an Executor: Who Should You Choose?

    Picking an Executor: Who Should You Choose?

    Choosing an executor for your estate is a key step in the will-writing process. There are many factors to consider, and it’s not always as simple as choosing a family member or friend. The job of an executor can be complex, involving many different tasks as they prepare the estate for distribution to beneficiaries. Before appointing an executor, it’s important to understand who is eligible, and who would be a good fit.

    Who Can Be an Executor?

    Almost anyone can be the executor of a will in BC. This can include beneficiaries named in the will, a spouse, a best friend or even a lawyer. The only requirement is that the executor is not a minor (they must be at least 19 years old).

    Naming Multiple Executors

    A person named as the executor of a will can decline the duty before beginning the estate administration.

    Will-writers are able to name multiple people as executors of their will – known as co-executors.  This is beneficial in some cases as it spreads the workload across multiple people. However, co-executors must agree to all decisions made on behalf of the estate. This can further complicate or prolong the estate administration process. Frequently, parents choose to name all of their children as co-executors in the interest of fairness. If some of the children have moved away, the task of coordinating the administration process can become more difficult. Naming co-executors can be beneficial in some cases, but can be detrimental in others. It is important to carefully consider who to appoint. In cases of co-executorship, it is essential that the executors are able to work well together.

    Naming a Professional Executor

    For will-writers looking for a truly neutral party to act as executor, a professional executor can be appointed. They are often lawyers, notaries or accountants. This will cost more than naming a loved one would, however, it will ensure that the estate is administered at a professional level. Sometimes, people choose to name a professional and a family member as co-executors. This way, the family member can handle most of the estate affairs, and the professional can assist them. This ensures that the administration is done properly and efficiently. For more on this, read our blog on whether you should appoint a professional executor or not.

    Characteristics of a Good Executor

    Will-writers should be sure that they are choosing the right person to act as executor of their will. Will-writers should choose an executor who is objective, trustworthy, lives nearby, and willing to take on the role.

    a)      Objectivity

    Executors must act in the best interest of the estate’s beneficiaries and strictly adhere to the will’s directions. If the executor is named as a beneficiary in the will, which they often are, they should always be acting from an objective standpoint. The executor cannot act in ways to maximize their benefit from the estate at the cost of other beneficiaries’ entitlements. Objectivity is essential to the estate administration process and it’s important that the executor can take a neutral position when making decisions on behalf of an estate.

    b)      Trustworthiness

    Because of the authority and power that an executor has over the distribution of an estate, will-writers should always name someone who they feel is trustworthy. Estate administration can involve handling large amounts of money – paying unpaid debts owed by the estate, selling estate assets, etc. Even though executors must provide a detailed account of everything that went in and out of the estate, an interested party must be very thorough to notice if the executor has attempted theft.

    c)      Residing in the Same City

    Naming an executor who is living near the place where the estate assets reside is very important. If someone who lives outside of Canada is named as executor, there can be significant complications as they transfer the estate’s assets. Further, they will run into a number of obstacles trying to fulfill all of their responsibilities while abroad. It is always recommended that the executor be someone who lives in the same city as the assets, or someone who can easily travel to the city for an extended period of time to administer the estate.

    d)      Willingness

    If you are named the executor of an estate in a will, you will not be forced to take on the role. Will-writers should talk with the people who they want to be their executor to ensure that they are willing and prepared to take on the responsibility. Someone who is unwilling or reluctant to administer the estate is less likely to do a good job of the administration, or could cause significant delays in the distribution of the estate. Even if you think someone would be a great fit for the job, you must make sure they are willing. Usually, the executor’s job requires significant time and energy, and the role can place a large burden on some.

    If your estate is large and complex, it can feel like a second full-time job to your executor as they work to administer your estate. Ensuring that an executor understands the role they’re agreeing to and the tasks which they’ll be responsible for is important in making sure they can handle the job. It is advisable to discuss the role with the person who one would like to name as their executor before their death, as if an executor renounces their title after the death of a testator, the courts will have to appoint a new one which may conflict with one’s final wishes.

    Ultimately, it’s up to the will-writer to choose who their executor should be. If you’re unsure who to appoint, contact an experienced estate lawyer today. We can help you to pick someone who will properly administer your estate.

    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.

  • Enhanced Care – ICBC’s New Changes: Good or Bad?

    Enhanced Care – ICBC’s New Changes: Good or Bad?

    ICBC recently announced significant changes coming to the standard auto insurance system in British Columbia. Starting in May 2021, all insured vehicles will be switched to the new Enhanced Care coverage system. The underlying idea is that BC residents will pay less for their auto insurance by removing the ability to involve lawyers and mount lawsuits after a car incident. The cost of auto insurance is set to be reduced by approximately 20% or $400 each year, while the benefit maximums will be increased.

    What is Enhanced Care?

    Looking at the comparison above, the Enhanced Care system features significantly more in the maximum allowance for accident recovery, noting an increase by more than 24 times today’s plan. Today, if you are involved in a crash, you receive a maximum of $300,000 in benefits and up to $740 each week in lost wages. From there, you can choose to sue to receive further compensation. Under the Enhanced Care coverage, the maximum is $7.5 million and $1,200 each week in lost wages. This increase is to make up for the difference in not being able to sue other drivers involved in your injury. Enhanced Care features various other benefits to car crash victims attempting to accommodate for all circumstances.

    Is Enhanced Care as good as it sounds?

    At first glance, Enhanced Care sounds like a great change coming to ICBC and BC auto insurance; however, upon further analysis, you may start to think otherwise. While lawyers and legal fees can be expensive, with the help of lawyers victims of crashes are represented fairly and are compensated how they should be. Lawyers take responsibility and fight for their clients to ensure a compensation package that truly reflects the victim’s situation is awarded. Under Enhanced Care, those involved in car accidents will not have the option to sue at-fault drivers unless it was a serious offence, violating the Criminal Code (such as driving intoxicated). Victims will have to rely on ICBC and their government-appointed “Fairness Office” to give them fair compensation. If they don’t feel they have been awarded fairly, there is not really anything that the victim can do. The only option available will be to file a dispute through the Civil Resolution Tribunal (CRT). The CRT is part of the justice system, but its processes do not involve the courts.

    Receiving a guaranteed payment of lost wages without having to go through the legal process is convenient, however, the Enhanced Care plan states that only 90% of income will be compensated each week. So, this means that, no matter what, you will be losing 10% of the earnings you’re accustomed to if you’re rendered unable to work after an auto-related injury. Under the current system, you only receive 75% of your income under ICBC’s standard auto insurance. When comparing the two, it seems great – a 15% increase! The big difference is that when a lawyer is hired, victims are traditionally compensated fully and fairly for all their lost earnings.

    Let’s look at what happens to the at-fault drivers. Using ICBC’s example, Sam causes a crash by passing a vehicle too quickly. He is injured as a result and the two others in the vehicle he crashed into are injured as well. All three of those involved are compensated by ICBC through Enhanced Care for the injuries sustained. Unlike in the current plan, Sam would not have to worry about running out of funds for his recovery. He will also receive up to $1,200 each week in wages lost payments. Everyone involved is compensated. Sam, the at-fault driver, “pays” for this through increased insurance premiums, just like in today’s system. Surprisingly, this type of “no-fault” or “care-based” system as ICBC calls it, typically leads to an increase in car accidents because the at-fault drivers are awarded initially with medical reimbursements and wage loss payments. Drivers are held less accountable for their actions as the only monetary repercussions are increased annual premiums for their autoplan.

    Discrimination under Enhanced Care

    Since there will be no lawyers involved in typical car accidents under Enhanced Care, there must be certain guidelines and standards for how compensation will be rewarded to each situation. Let’s look at some of the most notable groups of people that stood out to us.

    The unemployed

    Someone who is unemployed, but able to work, that is injured in a car accident is eligible to receive compensation based on the B.C. Industrial Wage Average (which was $50,691 in 2018). Even if that person was expecting to start employment for $100,000 the next day, they will only be entitled to a figure based off the $50,691 (or whatever the B.C. Industrial Wage Average is at the time) under Enhanced Care.

    Students

    Similar to the unemployed category, post-secondary students can receive some figure based on the B.C. Industrial Wage Average. One new proposed change is that Enhanced Care can reimburse up to $20,000 per year for missed schooling. The downside to this is that a full year of missed schooling could mean a full year of missed salary in the future which could be worth much more than $20,000.

    People making more than $1,200 per week (the maximum allowable for lost wages)

    BC residents who fall under this category will have to buy additional insurance if they want to be fully compensated for lost wages in the case of a vehicle collision. This means that there will be an increase in annual insurance premiums for these people.

    Minors

    Typically, minors will have minimal work experience and their wages reflect this. Wages usually increase quickly as minors gain more and more experience. The Enhanced Care system will lock the minor into a wage compensation package based on their earnings at the time of the injury. If the injury sustained is significant enough to withhold the minor from work or school for a long-period of time, this will have a big impact on their potential earnings.

    It’s important to note that the figures cited in this blog are the maximum allowable under the Enhanced Care system. This does not guarantee by any means that you will be compensated with the stated amounts in the case of a car crash. More likely than not, victims will be awarded less than the stated maximums.

    For a full list of changes under ICBC’s Enhanced Care, see https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/organizational-structure/crown-corporations/enhanced-care-coverage-intentions-paper.pdf

    If you have a question about this topic or another legal issue, contact us for a free legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Notice of Dispute: Preparing to Challenge a Will

    Notice of Dispute: Preparing to Challenge a Will

    To challenge a will, interested parties can issue a notice of dispute to the courts to pause the estate administration. For the majority of will challenges, the notice of dispute must be issued before the will has been granted probate. When issued, the probate courts are unable to grant probate and must wait until the notice has been dealt with. In essence, the notice of dispute will put the estate administration on hold until it is removed.

    Who Can Issue a Notice of Dispute?

    Rule 25-10 in the Supreme Court Civil Rules specifies the laws surrounding notices of dispute in BC. Essentially, anyone who has an interest in the estate is able to file a notice of dispute. More specifically, the people who can issue one are:

    • Any executors or alternate executors of the will,
    • Any beneficiaries of the will, and
    • Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit solely.

    Depending on the family structure of the will-writer, intestate successors for each estate can vary. For more information, read our blog on how assets are distributed in intestacy.

    As an interested party, you are entitled to a notice of probate. The executor must notify you that the will is planning to be probated soon and provide a copy of the will at least 21 days before probate is granted. If you’re someone who is entitled to a notice of probate, you’re also someone who is able to issue a notice of dispute. Further, there can only be one active notice per will.

    Valid Reason for Issuing a Notice

    A notice of dispute can be renewed after a year by the disputant if they have good reason for renewal.

    The courts will only allow a notice of dispute when the claimant has a legally valid reason for issuing it. An example could be a beneficiary who has proof that the will was incorrectly witnessed and is therefore invalid. By issuing a notice of dispute, this beneficiary could file to have the will proven in solemn form.

    On the other hand, if a person issues a notice because they’re unhappy with the terms of the will, even though the will is valid, the notice will likely be quickly dismissed. In general, the notice of dispute is meant to speed up the probate process and minimize delays while allowing interested parties a fair opportunity to raise any concerns. People who have valid reason for issuing a notice must act fast so that the will administration process can keep progressing.

    Removing a Notice

    A notice of dispute can be removed either by the disputant formally withdrawing it, the courts dismissing it, or when the document simply expires. The only time the courts will remove a notice is when they believe that it’s not in the best interests of the estate to uphold the notice. As an estate executor, you likely want to remove a notice of dispute quickly to begin administering the estate. To do this, you will file an application to have the noticed removed. The courts will accept the application if it’s believed that the notice is against the best interests of the estate.

    A disputant has a year to take action and have the issue resolved. After a year, the notice of dispute will expire if it has not been renewed. From there, the executor can file for probate and begin estate administering.

    If you wish to issue a notice of dispute and challenge a will, contact an experienced estate lawyer today. We will make you and your case a top priority, ensuring you receive the inheritance you’re entitled to, no matter what it takes.

    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.

  • Unjust Enrichment Claims by Family Caregivers

    Unjust Enrichment Claims by Family Caregivers

    Family caregivers often spend many hours and great effort caring for elderly relatives, sometimes without pay or compensation. Many caregivers sacrifice paid work and career opportunities to provide care. Unjust enrichment claims can offer legal remedies for those in this situation. Unjust enrichment follows the doctrine of restitution, which says profits should not come at another’s expense. The goal of these claims is to compensate those whose services have been taken advantage of, providing effort without mutual benefit. However, they can be difficult to prove successfully.

    Legal Process for Unjust Enrichment Claims

    To claim for unjust enrichment, the claimant must be able to successfully prove that:

    1. There was an enrichment or benefit received by the defendant;
    2. A loss was suffered by the plaintiff related to the enrichment, and;
    3. There was no juristic reason for the enrichment.
    A successful unjust enrichment claim will be required to be paid before the estate is distributed according to the will.

    The case of Kerr v. Baranow (2011), heard before the Supreme Court of Canada, helps to clarify many of the questions set forth in regard to unjust enrichment claims. As applied in this case, the courts take an economic approach for the first two requirements – that there was a clear economic value gained at the expense of another. The third requirement, juristic reason, is typically where controversy can arise, however.

    Juristic reason is a vague concept. In general terms, it is a reason for the enrichment and loss suffered, like an excuse or explanation for the enrichment that the defendant can give to the courts. The judge in Kerr v. Baranow stated that, “the absence of a juristic reason for the enrichment means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff.” If the defendant can prove there was juristic reason, then the enrichment is not unjust – dismissing the unjust enrichment claim. Juristic reasons can include contracts, loving intent, statutory obligations, gifts, etc.

    Legal Remedy Available from an Unjust Enrichment Claim

    In unjust enrichment claims, there are two types of remedies available – constructive trusts and quantum meruit.

    A constructive trust is a remedy giving the plaintiff a percentage of the defendant’s estate or property. This can arise when monetary compensation is not sufficient to remedy the situation, such as when a caregiver was significantly attending to the maintenance of a property. As an example, a constructive trust could be ordered to a plaintiff who maintained a house while an elderly person was unable to. This plaintiff would receive a percentage of the property that they maintained. This is typically a much higher form of compensation than quantum meruit.

    Quantum meruit is a remedy in the form of a monetary payment, typically to pay for services of the family caregiver. Quantum meruit applies both to cases where there is and is not an enforceable contract established between the parties. In the case of a family caregiver claiming unjust enrichment, quantum meruit is a common remedy. In past cases, to determine an accurate quantum meruit value, courts have identified the average hourly wage for the services provided by the caregiver and how many hours were spent.

    Family Caregivers & Successful Unjust Enrichment Claims

    The law behind unjust enrichment claims is meant to reimburse caregivers reasonably for their work, regardless of if there was a contract in place or not. Most often, family caregivers are people related to the elderly person, who initially provide a minimal amount of assistance. As the person requires an increasing amount of care, caregivers can find themselves working what feels like two jobs as they devote considerable amounts of time to caregiving. The law in BC identifies that these people should be compensated for their services.

    Some common examples of instances when BC courts have ruled in favour of unjust enrichment in family caregiver cases are:

    • Children who reduce working hours, sacrificing his/her career to take care of their parents,
    • People maintaining the elderly’s property through housework, yardwork, renovations, etc.,
    • People maintaining the elderly’s financial payments – living, medical and/or rent payments, or,
    • People providing emotional/physical support on a regular basis, for an extended period of time.

    Challenges in Proving an Unjust Enrichment Claim

    As is it common for people to provide care for loved ones, it can be difficult to prove that a family caregiving case satisfies unjust enrichment. The benefits to the cared for and losses to the caregiver must be very significant. Each case will have different circumstances and facts to help prove unjust enrichment or refute the claim. The claimant should be prepared to prove the first two requirements (as described above), while the defendant has the burden of proving a juristic reason for the enrichment.

    If you’ve been victim to unjust enrichment, contact an experienced estate lawyer today. The court process may seem daunting; however, keep in mind that the majority of cases are settled outside of court. We can ensure that you receive fair compensation for the caregiving services you provided.

    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.