You're a beneficiary. Do you need your own lawyer?

One of the most misleading phrases heard in relation to estate administration is the term "lawyer for the estate". Why is it so misleading? Because beneficiaries, who logically assume that as heirs of the estate they are represented by the estate lawyer, are completely incorrect in that assumption.

I regularly receive calls and emails from beneficiaries of estates not being handled by my office. They are bewildered, frustrated, and sometimes angry because the lawyer handling the estate won't answer their questions or do what they instruct the lawyer to do. They want me to slap that misbehaving lawyer into shape, or perhaps to complain to the Law Society. Recently I dealt with an estate in which I received a heated rant on a weekly basis from a beneficiary who was in a rage because I wouldn't agree to call him and consult him on how and when things should be done.

All of this emotion is completely misplaced.

The estate lawyer does not work for the beneficiaries. He or she works for the executor of the estate. It is actually the executor who works for the beneficiaries, so the anger against the lawyer, if anger there must be, should be directed at the executor.

In a perfect world, the executor does a great job representing the interests of the beneficiaries. The lawyer obtains the probate from the court and advises the executor on estate issues and procedures and all is well. Most of the time, a beneficiary doesn't need his or her own lawyer because everything works reasonably well. All estates hit one or two small snags but generally not enough to cause a serious dispute. Sometimes things happen just as they should. Then again, sometimes they do not, and this is where the problems begin.

When a beneficiary is having a problem with the executor, the solution is not to contact the estate lawyer for help. The lawyer works for the executor and therefore cannot help the beneficiary. If the lawyer becomes aware that there is a dispute between those parties, he or she can suggest solutions or arrange mediation. Most of us will try really hard to ensure that an estate doesn't slide off the rails into litigation. If the executor refuses to do those things, the lawyer cannot force them.

So where does this leave the beneficiary?

As a beneficiary, your first line of communication and information is through the executor. Even if you don't especially like that person or you think his or her responses are too slow, the executor should be the first one you approach. If the communication breaks down so badly that you need outside help, you will likely need your own lawyer to assist you. After all, if every conversation ends up in a shouting match, nothing is being accomplished. You will want someone else to speak on your behalf.

If it is a dispute that requires court intervention, you will more than likely want a lawyer to assist you through the complicated estate process.

Often a beneficiary doesn't have a dispute but needs advice. For example, should you sign the Release? Why can't you have a copy of the will? Is there something missing from the accounting? If all you need is information about the estate process, the estate lawyer can probably give that to you. But don't ask the estate lawyer for legal advice about what you should do. Remember that he or she does not work for you.

Father disinherited from son's estate for abandonment

Here is a twist on the usual stories we hear about people being disinherited. Usually the story is that a parent left a child out of the will. In this case from Kentucky, a father has been disinherited for abandoning his son.

A young man named Brandon died in a car accident when he was 24 years old and did not leave a will. His parents, being his next of kin, should be the people who would inherit his estate. Brandon did not have an especially large estate but there was quite a bit of interest in the fact that there would be a large settlement arising from the fatal car accident.

Brandon's mother objected to Brandon's father receiving half of the estate on the basis that the father had abandoned the boy. Brandon's parents were never married, and in fact it wasn't until Brandon was 7 years old that his mother sought out the father and told him about Brandon. The father acknowledged that he was the father and paid the amount of child support ordered by the court for a few years. The father saw Brandon only a couple of times. When Brandon was 11, his mother married and Brandon's surname was changed to that of his new step-father. After that, the father had no contact with Brandon and paid no child support.

For more detail about the facts of the family history, here is the story.

In court, the judge agreed with the mother that the father had abandoned Brandon and therefore under the state law he was not entitled to any part of the estate or of the accident settlement. The father appealed, but the appeals court also agreed with the mother.

It's an interesting concept from an estate litigation point of view because the crux of the issue seems to be whether the father deserved to inherit something. Most of the time, estate law gives a right to inherit to people regardless of whether they are deserving or how they have behaved. It's not a hard-and-fast rule, since all rules have exceptions but as a general statement it's the legal relationship that creates rights and not the quality of the relationship.

Brandon lived in a state where the law specifically addresses the issue of parental abandonment. I have looked at the law of several provinces and I do not see an equivalent provision. I suspect that our courts might have a very different outcome on the same facts.

I'd love to hear what you readers think about this. Should Brandon's father  have the same right to inherit as his mother? Is this a case of a disinterested parent suddenly getting interested because of the money, and if so, should that matter? Should a parent have a right to inherit just as a child would, even if the relationship was not especially good?

UBC and dead woman's gardener battle over her house and cash

One of the biggest challenges of a lawsuit involving the estate of a deceased person is understanding and proving what the deceased person intended to do. Almost any action can be interpreted in two or more ways depending upon the outcome desired by the person doing the interpretation.

In 2014, Mary Ann Gordon, a childless widow, died in Burnaby, BC at age 98. Her will had been redone a few times over the last few years of her life. At one point she wanted to leave her entire estate to the University of British Columbia (UBC) to fund research into macular degeneration, a disease from which she herself suffered. However, by the time she passed away, her house, car, and money had all been transferred to her gardener, David Ohori. The house was worth $1.7 million and there was about $170,000 in cash. In addition, Ohori was now the executor of what was left of her estate.

Click here to read the story.

This story came to light in 2018 because UBC is suing to have the assets returned to the estate so that they may have a share of them. They are alleging that Mrs. Gordon did not have the mental capacity to make the transfers of the property to Ohori. Clearly the allegation is that Ohori and his wife took advantage of a vulnerable, isolated person. On the other side, Ohori is alleging that he and his wife were such good friends with Mrs. Gordon that she treated them like a son and daughter.

An addition bit of information that I found interesting is that Mrs. Gordon's long-time lawyer that she had known for years met her on a few occasions to talk about transferring her assets and he found each time that she did not understand what was going on. It was only after the lawyer retired and Mrs. Gordon went to a new lawyer that the transfers were done.

This is where the challenge comes in. Was Mrs. Gordon a vulnerable person who was taken to the cleaners by opportunists? Or was she really so fond of these individuals that she wanted to treat them as the family she didn't have? Both sides will come up with evidence such as medical reports, comments made by her lawyer, anecdotes from neighbours and friends, and anything else they can think of that supports their position. In cases like this, sometimes even an exchange of Christmas cards becomes relevant.

Competent adults are entitled to leave their estates to friends or to charities if they wish. Other people don't necessarily have to like their choices or to find them sensible. Unfortunately, it is all too easy to  brush aside that simple concept when a person is elderly, but individuals don't lose their autonomy simply by aging. It is absolutely essential that the court is very careful not to take away a person's right to dispose of her property, just as it is also essential that the court must protect those who are vulnerable to financial abuse.

The more isolated the person, the easier it is for someone to take advantage. In Mrs. Gordon's case, the only person she had around her, looking out for her interests, was her lawyer. Those who take financial advantage of seniors know full well there is nobody around to see what they're doing or to care about it. Was this the case for Ohori? Was he a friend or a vulture? I look forward to reading more about this case as time goes on. The court has a tough call to make.

The attached photo is from an article in the Vancouver Courier and is credited to Cornelia Naylor.

We've been rated Best Estate Planning law firm in town - again!

We've been rated Best Estate Planning law firm in St. John's for the third year in a row. Well done to my team: Chelsea, Brad, and of course our little office dog, Roxy. Everyone works hard and it's nice to get a pat on the back occasionally!

It's Free Wills Month in St. John's, NL and we're proud to be part of it

This is Free Wills Month in my home town! We are proud to be participating in this worthwhile project of the Canadian Cancer Society and other leading charitable organizations. Click here to learn where and when this event is happening and to see a list of the law firms participating.

This is your chance to get your basic will prepared for free and to leave a donation to one of many life-changing charities. If your will is complex or if you want additional documents such as Enduring Powers of Attorney and Advance Health Care Directives, there will be a fee (just thought I'd throw that in there so nobody is taken by surprise!)