February 2017 - Garton & Harris

“Unfair” wills may be challenged in court

February 28, 2017/in Wills /by gartonandharris

In preparation for their eventual demise, many people make arrangements for the distribution of their estates after their passing. Wills are probably the most common method employed for this task. Although a person may choose to distribute an estate however he or she sees fit, within reason, there may be circumstances in which disgruntled heirs cry foul and challenge the will in court. Such an event is currently taking place here in British Columbia.

A wealthy local real estate developer passed away in Jan. 2016. In his will, the deceased left the entirety of his estate to his third wife. The will also names her as executrix of the estate. Notably absent from the will were his three adult children, all born during his first marriage.

The children have banded together to challenge the will, and filed suit on Feb. 7, 2017 at the B.C. Supreme Court. All three allege their father abused them during their childhood, both physically and emotionally. One of the three further claims confronting him about the abuse led to her estrangement from him. In their suit, they claim there was a fraudulent transfer of the estate to his third wife to preclude any inheritance they may have received. They are asking the court to award damages and have asked for a variance to the will in order to gain some part of the $57 million estate.

Challenges of wills can be complex and potentially lengthy endeavours. Doing so successfully may require a thorough knowledge of estate law in British Columbia. If a person feels he or she was unfairly omitted from a will, it may be worth contacting an experienced lawyer for advice on how to proceed.

Source: CBC News – British Columbia, “Battle of will: Local family fights over $57M estate“, Karin Larsen, Feb. 24, 2017

Some lesser known facts about power of attorney in B.C.

February 22, 2017/in Power of Attorney /by gartonandharris

There are many legal tools available to help men and women in British Columbia transition into old age with fewer worries. Wills, power of attorney and other advance planning directives are excellent methods of preparing for future possibilities. Granting power of attorney, in particular, is a versatile way for anyone looking to secure his or her care or finances down the road.

Though many may understand that power of attorney allows a person to act on their behalf, they may not realize how customizable that power can be. It is not necessary to grant broad, sweeping power over all of one’s personal matters. In fact, it can be limited to a single bank account, for example, or to a specific transaction, such as cashing a pension cheque.

If power of attorney is granted for handling real estate matters, there are some specific rules that must be understood and adhered to. These rules are part of the Land Title Act. One regulation of note is the duration of power of attorney. Unless otherwise specified, the power is limited to three years. This is one of many reasons why estate planning directives should be revisited from time to time.

Another interesting fact is a person can appoint more than one attorney to manage his or her affairs. This can be done in separate documents giving distinct powers, or in a single document with shared power. In the case of the latter, the grantor can choose how the specified agents will reach decisions (e.g. by consensus or by majority) and what happens if one or more are unable or unwilling to continue.

It is important for people to make plans for the future, even those with modest estates. Giving the power of attorney is a great way to ensure a seamless continuance of financial and personal care matters should one be unable to do so at some point. In order to be certain things are handled as desired, however, it may be prudent to develop the plan with the assistance of an experienced British Columbia lawyer.

Source: cbabc.org, “Power of attorney and representation agreements“, Feb. 19, 2017

Most wills should be made with the assistance of a lawyer

February 14, 2017/in Wills /by gartonandharris

There are many projects that can be viewed as do-it-yourself tasks. Simple household repairs and basic car maintenance, for example, are chores a lot of people choose to handle on their own. More complicated endeavors, like electrical work or replacing a transmission, may require a professional. The same can be said of wills; while there are many who feel a will is something they can tackle alone, many people have specific requirements that make using a lawyer a very good idea.

A will can be a simple document or a complex one, depending on the nature of one’s estate, and how that person wishes to dispose of it. The more complicated things are, the more value there is in working with a lawyer. For example, if for some reason a person wishes to exclude his or her spouse and/or children, or severely limit their benefits, a lawyer would be the best bet for getting this done. British Columbia law expects a person’s closest relatives to benefit from an estate; running contrary to that expectation may be difficult, and almost certainly beyond the scope of someone without a lot of legal skill.

If a person has real estate holding in another province or country, or if income tax is owed elsewhere, there are complexities in the estate about which a professional may need to advise. Even simply owning a cottage can introduce issues that a lawyer or a tax professional should review. On the subject of ownership, owning a business in whole or in part also muddies the legal waters. In order to be certain one’s wishes are followed to the letter, the input of a lawyer might be necessary.

These are just a few of the many reasons why it is often best to engage the services of a lawyer when wills are being considered. Having a well crafted will can provide peace of mind, knowing that one’s estate will be looked after when the time comes. A proficient British Columbia lawyer can help ensure a will is properly prepared.

Source: mylawbc.com, “What MyLawBC doesn’t cover“, Accessed on Feb. 11, 2017

During probate, it is important to file all the right documents

February 9, 2017/in Estate Administration & Probate /by gartonandharris

There are many responsibilities assigned to the executor of an estate. Of these, probate is perhaps the most important, as it precedes all other aspects of administering the estate. In order for probate to proceed in British Columbia, several important documents must be submitted.

The Submission for Estate Grant provides the court with some relevant details about the application. An Affidavit of the Applicant identifies the executor and makes clear his or her relationship with the testator. This does not necessarily mean a family connection, although that is common. An executor does not need to be a family member.

Many people need to be notified of an application for probate, and the Affidavits of Delivery confirm that these tasks have been completed. The Affidavit of Assets and Liabilities is the most complicated submission for many estates, being comprised of a full list of all the assets and liabilities of the estate. It’s made up of three sections: one for real property, a second for personal property and a third for liabilities.

Not surprisingly, the executor has to produce the original will, signed by the testator. Should the original not be available, a copy can be substituted. Lastly, the executor is required to submit two copies of a Certificate of Wills Search. After searching the Wills Registry, which is run by the Vital Statistics Agency, this certificate will be granted.

Typically, an uncomplicated probate in British Columbia will take about two or three months to complete. Nevertheless, for some people it may seem a complex and time-consuming task. Assistance with probate, and other duties of the executor, can be sought from attorney.

Source: Clicklaw Wikibooks, “Probating the Will“, Accessed on Feb. 6, 2017

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