The revised Alberta Probate Kit is now available! And I'm giving one away.

Just a quick note to say two things. One is that the new, revised Alberta Probate Kit is now available in stores and online. No more waiting! Click here to buy your copy right from the publisher. The second thing is that I will give a free copy of the book (and of course, its accompanying download) to the first person who emails me at estatelawcanada@gmail.com and asks for a free copy.

Obtaining a Clearance Certificate for an estate

Today I am providing a link to a very practical article posted on www.thebluntbeancounter.com, a blog I read frequently. The blog is written by Mark Goodfield, a Canadian tax accountant, who shares his experience and knowledge about all sorts of tax situations. In this particular article - click here to read it - Mr. Goodfield talks about whether an executor should obtain a tax clearance certificate from Canada Revenue Agency, what the certificate does for you, and how to apply for it. I recommend that all executors who want straightforward, expert advice should read this article.

Contesting a Will Without a Lawyer: A DIY Guide for Canadians

It's finally ready! My newest book has been published by Self-Counsel Press and is now on its way to bookstores and online sellers.

This latest book is a guide to getting your estate-related lawsuit into court. It explains the various grounds for contesting a will and describes in detail how to go about it. It contains all of the forms you'll need to launch your lawsuit, with plenty of explanations and examples to help you along the way.

Below I've posted a snippet from the book. This is from a chapter about understanding legal cases and legal research, and is talking about why courts look at previously-decided cases when they are considering what to do about your case. I posted this excerpt to give you a flavour of the language used in the book and an idea of how legal concepts are explained.

This book will be of interest to anyone who is thinking about challenging an estate, with or without a lawyer because it is absolutely packed with information, explanations, and ideas. The forms are available on a download that comes with the purchase of the book. If you are working without a lawyer, this book will guide you through the process. If you are working with a lawyer, this book will save you hours that would otherwise be spent asking the lawyer for information (and the fees you'd pay to get that information). It's also interesting to anyone who just wants to know how things work in the estate litigation world.

I'm very excited about this new book and I hope you readers like it and find it useful. As always, feedback is appreciated. Here is the excerpt I mentioned:

"Precedent" literally means “what went before.” In the context of litigation, precedent refers to the idea of the court following cases that have been decided in the past. This is done so that cases with similar facts will have similar outcomes even when the cases are decided by different judges in different places. There can be some certainty among lawyers and laypeople alike as to what will happen when any given case goes to court. 

For example, let’s look at the case of Pecore v. Pecore, decided by the Supreme Court of Canada in 2007. In that case, a father added his daughter to his bank account and investment account, making her a joint owner. The question the court was asked to decide was whether on the death of the father, the joint assets belonged to the daughter or to the father’s estate. The court confirmed that the presumption of resulting trust arose, as we discussed earlier in this book. The court examined the facts of the case and found that there was very strong evidence that the father intended the account to be a gift to his daughter. 

Since the Pecore case was decided it has been cited in at least 500 reported cases. It gives guidance to everyone who is working on a case with joint assets because it describes how to tell where the asset really belongs. If your case was about joint assets, you could look up the Pecore case and find out what “strong evidence” the court relied on. If you can find the same sort of strong evidence for your case, you could expect a similar outcome.

In our legal system, we are required to follow the precedents that our courts have set down for us, as long as we ensure that the facts and the legal questions we are following are the same as the cases we are working on. This is one of the cornerstones of the common law legal system that exists in all Canadian provinces and territories except Quebec. 

Can a beneficiary be asked to sign an acceptance/release before the estate administration even starts?

This question was recently asked on this blog by a reader. It appears that beneficiaries of an estate are being asked to sign paperwork before the estate administration has even begun and the reader is wondering how to handle it. Here is the question followed by my comments:

"Is there such a thing as an acceptance release form signed by each beneficiary before the will goes to the lawyer saying you accept the terms of the will? This is being proposed by an executor to have each beneficiary sign that they accept the terms of the will in advance?"

This is not something that I have ever asked beneficiaries to sign, and no clients of mine have ever told me they've been asked to sign one. However, I can see why an executor would ask for this. He is no doubt gauging the amount of trouble he should expect from the beneficiaries. If he anticipates a lot of friction, he can either turn down the job or buy executor's insurance.

I don't have an issue with an executor asking beneficiaries to sign a document stating that they agree with the terms of the will. That's basically nothing more than shutting the door on anyone challenging the will itself. This kind of agreement would bar someone from later contesting the will on the basis that the deceased didn't have the proper mental capacity or was influenced by someone. It makes sense for the executor to attempt to find out whether there is anyone involved in the estate who intends to challenge the will.

What I do have a big problem with is using the word "release".

In legal proceedings, a signed release means that the person who has signed it has agreed that the matter has come to a conclusion and he or she will never again contest the subject matter. Once the release is properly signed, the person is legally barred from ever opening up the issue again. In my view, it is not appropriate to release an executor before the estate has even started. I would never allow a client of mine to do so.

A release is signed at the end of an estate administration for a reason. Once the estate is wound up, the beneficiaries can look at the job the executor has done. The beneficiaries will be able to see what funds were received and what was paid out. They will see how matters were handled, how long it took, whether there were mistakes made, whether the accounts add up, etc. They sign releases once they are satisfied that all is well.

If the release is signed before the executor even starts work, the beneficiaries will lose any opportunity to object to a poor showing by the executor, to missing funds, to years of delay, or other problems. It simply makes no sense.

It seems unlikely to me that a lawyer would prepare a release for signature at the beginning of the estate. I wonder whether in this case the paperwork has been suggested and prepared by the executor before hiring a lawyer to handle the probate of the will. When people draft their own documents, mistakes like that are frequent and sometimes people sign things that eliminate or diminish their rights without even realizing it.

In this case, I suggest that each beneficiary who is asked by the executor to sign a document should take it to a lawyer for review. Know what you're signing and what the document does to your current and future rights under the estate. Home-made documents are dangerous enough, but to sign them without legal advice is downright foolish.

Have you considered executor's insurance?

Have you heard about executor's insurance? It covers not just the loss to an estate caused by mistakes made by executors, but also the legal costs of defending the lawsuit that might otherwise be paid by the estate. If you've been named the executor of an estate, particularly one in which you anticipate a tough time dealing with beneficiaries, you might want to think about this kind of insurance.

Click here to read a really good article that explains  how executor's insurance works, and sets out what is covered and what is not covered.

If any readers have used executor's insurance, let us know how it worked for you.