Tuesday, July 26, 2016

Coming soon - DIY letters of administration kit for Newfoundland and Labrador

The latest addition to our bookshop is almost ready for purchasing!

We are pleased to announce that we have completed putting together a comprehensive kit for anyone in Newfoundland and Labrador who wants to apply to the court to become the administrator of an estate.

The kit includes an 82-page print guide, with detailed explanations and instructions for preparing and filing all of the documents you need to apply to the court, as well as full-size samples of all the documents. It also includes a flash drive with all of the documents for you to download and use. The book is 8.5" x 11" and is coil-bound. It will sell for $40.

The kit should be ready for purchase in about a week. We're just waiting for the box of books to arrive from the publisher. You'll be able to get one from our website or from www.newfoundlandlawbooks.com.

While I am a wills and estates lawyer and a large part of my work involves making applications to the court for clients, I don't believe that making a kit like this available cuts into the amount of work available to lawyers. I fully recognize that not everyone is going to hire a lawyer to do the work for them. Either they live too far away from a lawyer, or they can't afford one, or they just want to do the work themselves because they believe it will be simple. That's why we made this kit. And I have faith that most people who get started on something on their own will realize it if they get in over their heads and will ask a lawyer for help if they need it.

Saturday, July 23, 2016

"Party is on!" Nova Scotia man pens his own inspiring obituary

I didn't know Paul Culligan, but I already miss his sense of humour. Mr. Culligan recently passed away and left behind his own hilarious obituary. Click here to read more in an article from CBC News. The attached photo accompanied the CBC article.

Thursday, July 21, 2016

Does the court review wills that were made shortly before the testator died?

A reader recently sent me a note wondering about the legal effect of a will being signed shortly before the testator's death. The answer turned out to be somewhat complex. Below are the reader's question and my comments.

"If a will was signed shortly before the deceased passed away, does the court automatically review that, or could it be contestable?"

This brief question is going to generate a long answer, as it touches on several important elements.

The courts do not ever automatically review a person's will. There is no court, no government department, no public officer, who automatically reviews wills. The court only sees wills when they are submitted for probate, or are the subject of a lawsuit. In all of those cases, the will is brought to the court by an individual person such as an executor, a beneficiary, or a creditor, with a specific issue or question regarding the will.

Perhaps your question could be interpreted as asking whether the proximity of the signing and the subsequent death are automatically something that should be of concern. That is, whether it's something that individual executors and beneficiaries should find troubling.

If so, the answer is no. I could be perfectly healthy today and sign my will, then be killed in a car wreck two days from now. It's coincidental that I just barely got my will signed before my passing, but there is no reason to find fault with my will just because it was made close to my death.

That's the short answer, but of course there is more to it. In cases where the deceased was seriously ill before his or her death, the fact that the will was done shortly before death could well be an issue. This is because heavy medications may impair a person's mental capacity. There must be more than just a short time period in order to make the situation suspicious; look further to see what other facts exist and whether together they paint a picture that should be of concern.

Perhaps, for example, a man made his will only three or four days before he died. That on its own is not suspicious. But what other facts exist? Is this man's will significantly different from wills he had made earlier in his lifetime? In particular, does he heavily favour one person over others, or completely leave out family members in favour of a recent friend? If you look at all of the facts, you might see a problematic story emerging, or you might not. The questions I've included here are just examples, as there could well be other scenarios that cause concern.

The major issue that will arise is a suspicion that the deceased had been coerced, tricked, or simply persuaded to make a change to his or her will, and that because he or she was frail or weak, succumbed to the pressure. In a case like that, the fact that the change was made shortly before death might well be important. The deceased might have felt very weakened and unable to put up the resistance that he or she might normally have done.

This is known as undue influence, and is a ground for contesting a will. Normally it would be a beneficiary (or someone who would have been a beneficiary had the will not been changed) who brings this to the attention of the court. It's not easy to prove but it can be done. If undue influence is proved, the will would most likely be struck down.

Wednesday, July 20, 2016

There's a new tort in town

The following post was written by Chelsea Kennedy, a criminologist who works with me at Butler Wills and Estates Consulting. Though this post doesn't specifically deal with wills and estates, it has the latest news about a new application of law in Canada that you will find interesting. Read on to see Chelsea's discussion of the dangers of gossip!

Just about everyone has gone on a rant about another person. We get upset, lose our tempers, and the blabbering begins. It turns out that this is no longer just an annoying habit.

The Superior Court in Ontario has ruled that a new tort is now in effect, referred to as “public disclosure of private facts”. This sort of tort – or civil wrongdoing – has been around for ages in regards to business. Many companies and government agencies require that their employees sign non-disclosure agreements.

However, this kind of breach has never before applied to personal situations.

It isn’t as simple as suing someone in civil court because they said something rude about you on Twitter. There are a few requirements that need to be met before a person can pursue a case.

For one, the information can’t already be in the public domain. So if you post pictures of yourself on Facebook doing a keg stand, you’ve put it out there yourself and it isn’t a tort for your frenemy to share it. Also, it needs to be of a private nature.

Secondly, the info must have been shared with the intention that it would be kept secret. When someone says “keep this to yourself”, they mean it.

Lastly, there must be some sort of harm done to the person if the info about them were to be shared with the public, whether that harm is emotional or financial. Telling all of Instagram that your co-worker is an alcoholic, that your neighbor is having an affair, or sharing naked pictures of an ex all cause harm.

So before you share secrets that you’ve been told (or overheard) consider the consequences.

Monday, July 18, 2016

How can a beneficiary make sure that the executor is disbursing the money according to the will?

Whenever I work with executors or hold Executor Boot Camp, I always coach the executor to maintain good communication with the beneficiaries. I know that's not always easy, as beneficiaries can be just as obstructive and cranky as anyone else. But when an executor does not provide enough information to the beneficiaries, speculation begins. The beneficiaries find the lack of information suspicious and their imaginations take flight. In the space of a day, an executor goes from being a trusted family member to a supposed fraud and thief. The problem is aggravated by the fact that beneficiaries are not always sure about their rights or what to expect from an executor.

A reader recently wrote to me asking about how to keep an eye on an executor, which is a perfectly normal question to ask. I did note, however, that the reader mentioned suspicion of shady activity. As far as I can tell there is no evidence of shady activity other than the lack of communication. So executors, take note. If you don't tell the beneficiaries what's going on, they'll just create their own narrative, and that can lead to a lawsuit.

Below is the reader's question and my response:

"How can I ensure that the executor of my sister's estate is honestly disbursing the money as the will stated? That is, equally among 6 relatives. Her assets were in investments so I only know of a ballpark figure. The executor has not notified any heirs with valid paperwork or phone call or mail, except for sending a copy of the will. I am told by another heir that a lot of the money was paid to income  tax so the amount is less than anticipated. There is some shady activity going on and I believe the executor has to show paperwork of the distribution of the estate, do they not?" 

Certainly executors have to show paperwork of the distribution of the estate, but you should not expect him or her to send every beneficiary a copy of everything he or she does on a daily basis. That is unreasonable and there are not enough hours in a day for an executor to do that.

It appears from your question that nobody has received their cheques yet. The normal way that an executor proceeds when he or she is ready to pay out the beneficiaries is to send the beneficiaries a full accounting of the estate, together with a release. At that point, the beneficiaries all get a chance to look at what has been done. You'll be able to see the exact amount that was held in investments, and what was paid in income tax. There will also be dozens of other things too, such as legal fees, accounting fees, utility bills, credit card payments, bank charges, etc. If the accounting is half decent at all, you should get a pretty good idea of what's been done.

Part of the accounting will be some form of statement that shows what each beneficiary will get. At that point you can be reassured that everyone is receiving the same. All the beneficiaries get the same paperwork so if someone notices a mistake that nobody else knows about, the executor should correct it so that everyone has the proper information.

If you believe that the accounting is acceptable, you will sign the release and soon thereafter receive your cheque.

If you believe that there has been "shady activity going on" and you can point to it in the accounting - such as funds that are missing - then you do not have to sign the Release. You can ask for more information or paperwork. If you cannot get answers to your questions from the executor, your only option is to force the executor to pass his or her accounts through the court. At that point you will have a chance to tell the court what you think is wrong.

Be sure that you know what you're talking about. Don't even think about going to the court and just saying there has been shady activity. You'd better know what that shady activity is, or at least what is missing. Otherwise the court could end up dinging you for the cost of the court application for going on a fishing expedition that wastes everybody's time.

All of this post so far has been about the executor's responsibility to provide an accounting at the end of the estate just prior to distribution. However, any residuary beneficiary can demand that the executor produce an accounting at any time during the estate. If you decide that you cannot wait for the final accounting and you want to demand one now, do so in writing. Leave the executor reasonable time to gather his or her thoughts and make a photocopy. Don't expect someone to have an accounting to you in 24 hours. Give a few days, because realistically people have jobs and families and cannot devote themselves to executor duties full time.

Keep  your demands reasonable, but in light of your concerns about shady activities, examine the accounting carefully. Talking to other beneficiaries about the accounting, once you get it, is also helpful.

Beneficiaries who want more information about their rights, about how estates work and what to expect can find a ton of great info in my book called The Beneficiary's Answer Book.

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