April 2019 - Garton & Harris

Power of attorney: Common sense should prevail

April 30, 2019/in Power of Attorney /by gartonandharris

Canadians who choose someone to act on their behalf financially when they can no longer do so need to make the choice wisely. In choosing a person to act on a power of attorney, British Columbia residents will want to make sure the person is trustworthy and has some financial common sense. Fraud is a reality in some situations, so it’s important to give this power wisely.

When it comes to banking institutions, they want to know if a person acting on another’s behalf has the authority to do so. Powers of attorney can actually be refused by banks if documents presented are out of date, aren’t clear or don’t conform to banking policies. So, these documents must be kept up to date. Experts say when it comes to a power of attorney, banks should operate on a balance of caution and common sense.

When powers of attorney are rejected, significant problems can ensue, leaving a testator’s affairs in limbo. Even though banks may fear fraud in some instances, there should be real and definitive reasons for not accepting a power of attorney. Most of these issues can be thwarted by testators and family members and having a power of attorney drawn up at an age when the testator’s mental capacity is not likely to be in question.

A British Columbia lawyer can assist a client in drawing up a power of attorney early on during estate planning. In this case, a lawyer would have time to fix any issues with the document that may arise at financial institutions. With a power of attorney drawn up earlier in a client’s life, there is less likely to be pushback from financial institutions.

How to approach errors in wills in British Columbia

April 18, 2019/in Wills /by gartonandharris

Even when people pay particular attention when writing estate planning documents, errors may occur. Wills have to be meticulously written and contain no errors, or their validity in British Columbia may come into question. When an executor is confronted with errors in a will, there are a few remedies for him or her.

It’s good to know that simple spelling errors won’t make a will invalid. Very often, even when a property is incorrectly described, this isn’t cause for alarm. A lot lies on what the testator intended when writing the will. When there are issues that aren’t exactly clear, a court may review a will and try to establish the wishes of the testator and what he or she intended.

Dealing with a will that is ambiguous is a difficult task. That is why it’s important to be as transparent as possible when writing a will. If there are unclear areas in a will, an executor will need to apply to court to have those issues reviewed. If, however, beneficiaries agree on the areas that are unclear, it might not be necessary to head to court. But, it may be risky not to get a judge’s opinion.

If there are areas in a will that an executor or beneficiary believes to be unclear or to contain errors, he or she may wish to get the advice of a British Columbia lawyer who has experience with wills and estate planning. Getting such advice may be a way of sidestepping having to go to court. It is always better for everyone involved if these types of issues can be ironed out, out of the court room.

What happens when it’s believed an executor is dishonest?

April 2, 2019/in Wills /by gartonandharris

Most people go to great lengths to choose an executor they believe they can trust. When British Columbia residents draft their wills choosing an executor who is honest, reliable, astute and has some knowledge of finances is likely a top priority. But even when a testator chooses someone he or she believes can do the job appropriately, it may be that not every beneficiary might agree with the decision for whatever reasons.

In instances when one or more beneficiaries believe the executor of a will to be less than forthright, there are things that can be done, but only if there is some basis in fact. It may be that an executor may not be aware of the estate administration process and lacks the skills he or she needs. On the other hand, if an executor is acting criminally, that is another story.

There are essentially three “P’s” in the estate administration process: Protect, probate and pay. An executor must protect the estate, probate the will and pay beneficiaries and creditors. It is incumbent upon the fiduciary to keep beneficiaries advised of the status of the estate, although the executor doesn’t have to answer specific questions posed. If beneficiaries have any evidence an executor is acting dishonestly, they should speak to a lawyer regarding breach of trust issues.

When wills and other estate plans are being administered, it can be a complex and confusing process. When there is evidence an executor may be acting inappropriately, a British Columbia lawyer may be able to offer guidance and advice. He or she can also help an executor by providing accurate legal details about the estate administration process.

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