Great news! We'll soon be posting new material

Hi everyone,

I'm so pleased to see that so many of you are still visiting this site even though I haven't added new material for quite a while. I left the site up because so many law students, junior lawyers and members of the public tell me they like to come here to get practical Canadian info.

I'm in the process of setting up a new site. There will be brief articles like those you see here on this existing site, as well as more in-depth information for those who want it. There will be downloadable checklists, forms, precedents and even powerpoint presentations. 

I'm working on it and will let you know when the new one is up and running. In the meantime, I see we've surpassed 9 million views. Can we make it to 10 million?

See you soon!

Lynne

Using wills, probate, and death records to build your family tree.

Hey everyone, my latest book is out! Check it out if you are into genealogy or know someone who loves tracing their family tree. This one is unlike any other resource I've seen. It's all about using wills, probate records, and an amazing range of death records to fill out a robust picture of your ancestors. I've included everything from lists of passengers killed in shipwrecks to Holocaust records to prison executions and pretty much everything else you could imagine. It's all about using the circumstances of death to learn about the person's life.

The first half of the book focuses on Canadian records: where to find them, how to interpret them, what you can glean from them. While this obviously works for anyone in Canada researching their roots, it also works for people from any country whose ancestors at one time lived in Canada. 

The second half branches out to 30 other countries so that we can trace back to ancestors who immigrated to Canada. 

Best of all, there are hundreds of direct links, and each of them is clickable using the download included with the printed book. There are even a set of forms you can use to record, organize and preserve your research.

It's brand-new and is still on its way to shops, but here are some places you can see it:

Amazon.ca 

Amazon.com

Self-Counsel Press

Chapters/Indigo

McNally Robinson

Bankrupt beneficiary loses attempt to keep $1.1 million payable from a trust

Executors and beneficiaries alike have questions about how estates and bankrupt beneficiaries go together. Executors want to know what they are legally required to do with a share of an estate that is payable to a person in bankruptcy. And of course the beneficiaries want to know whether they are going to inherit the share or lose it to the bankruptcy process.

This question was recently looked at by the Ontario Court of Appeal in the case of Re: Richards. In this case, Michael Richards was the beneficiary of a trust. The asset in the trust was a home and the terms of the trust said that Mr. Richards' parents could live there for the rest of their lives, after which the asset would be transferred to him. The parents passed away, after which the trustee sold the property for $1,172,120.90. 

As it turns out, Mr. Richards was at that time in bankruptcy. He owed the bank $987,613. They got an order from a bankruptcy judge saying they could take this from Mr. Richards' account, plus costs and interest.

Mr. Richards appealed to a higher court. He said that his interest in the trust was suspended while he was in bankruptcy. He wanted to be discharged from bankruptcy first (still owing the $987,613) and then after that, he would inherit the trust property. This obviously clueless defense simply didn't wash with the appeal court.

The appeal court upheld the bankruptcy order. In the end, all Mr. Richard did was rack up more legal fees as he tried to avoid paying his legal debts.

The law is clear that when you are an undischarged bankrupt, money that you inherit - up to the amount that you owe - is to be paid to the bankruptcy trustee. This can be a tough one for families, since executors often want to help out a sibling who is having financial trouble. I have been asked many times by executors if they can simply hold onto the beneficiary's share until the bankruptcy proceeding is over. A key to knowing this is a bad idea is that the executor usually follows the initial question with "how is anyone going to know?"

Anyone who would like to read the Richards case may do so here.

Another home-made will disaster: fight over the family home ends after 12 years

Once, a long time ago, a very smug person said to me that he had made his own will because he knew full well that lawyers only wanted people to make wills so lawyers can make more money. To that person I replied that if I want to make money, I will encourage everyone to make their own wills. Why? Because I would make a few hundred dollars if I made someone a will, but I'd make tens of thousands of dollars on the family fight over the home-made will.

So let's dispense with the idea that home-made wills are any sort of money-saver. Though not every home-made will is a disaster, most are worse - MUCH worse - than people realize.

I'm going to give you an example based on a recent case from Alberta. In 1995, William Kirst made his own handwritten will. In 2010 he passed away. The fight over his will began shortly thereafter, and did not end until March of 2022. Yes, that means 12 years of fighting in court, including 7 years' worth of Case Management. It involved 17 court orders made by both the Queen's Bench and the Court of Appeal. 

And what were they fighting over? Just a house. 

The problem was that in the will, Mr. Kirst left his estate to his children but said that one son could live in the house "for awhile". Those two innocent-seeming words doomed his family to years of fighting.  Any  lawyer worth her salt would know that an undefined term like that would cause a problem.

It seems pretty likely to me that after 12 years, the legal fees amounted to more than the value of the house. I expect that family relationships are damaged beyond repair, as well. Paying a few hundred dollars for a will must, in retrospect, look like quite a good deal.

If anyone would like to read the Kirst case in its entirety, click here. 

Does a mother have an obligation to leave her deceased daughter's share of the estate to the daughter's husband?

There are so many new, interesting cases these days that I can't possibly blog about all of them. However, this one caught my eye because it addresses an issue that I hear about pretty often. This is the case of MacCallum v. Langille Estate, which was recently dealt with by the Nova Scotia Court of Appeal.

In this case, Cora Langille made a will leaving the residue of her estate to her daughter (Shirley), her niece and her grandson. As it turns out, Shirley died before her mother did. Shirley had cancer and knew she would likely not outlive her mother. Shirley wrote Cora, from whom she was estranged for some time, a letter asking her to give her share to her husband, Claude. Cora didn't change  her will. After Cora died, Claude applied to the court to challenge the will to receive the share that Shirley would have received if she had lived. Claude's main point was that Cora was under a moral obligation to leave him Shirley's share. 

Claude lost at trial, then lost again on appeal.

The judges were pretty clear on the fact that Cora had no legal or moral obligation to leave anything to her son-in-law.

As I mentioned, I do hear a lot of questions surrounding what happens to the share of an adult child when the child predeceases a parent. Many people wonder whether the child's share goes to the child's spouse. As this case makes clear, it does not go to the spouse unless the will says so.

There are some legal obligations to spouses that cannot be overlooked when making a will. Cora, for example, would have to consider her own spouse, if she had one. Her spouse would be her dependent automatically because of the marital relationship. But she has no legal obligation to anyone else's spouse, including her daughter's husband.

Claude relied heavily on what he called a moral obligation, saying that Cora should have followed Shirley's letter and left Claude the share. In fact, he suggested that the court should focus not on the law but on making a "fair" decision. In other words, anything that did not give him a share of the estate wasn't fair, regardless of what the law says. Given that he was in a COURT OF LAW, it maybe isn't surprising that the judges decided to follow the law.

Anyone who wishes to read the case may do so by clicking here.