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Friday, November 16, 2018

Saskatoon widow has her husband's tattoos - and the skin they're on - preserved

Sometimes a person's last wishes may seem unusual to the world in general. Here's an example. A man named Chris Wenzel passed away recently in Saskatoon. He requested that his tattoos and the skin holding them were to be preserved. Given that Mr. Wenzel's body art covered him from his neck to his ankles, that's a lot of skin.

His widow has carried out these wishes. Mr. Wenzel's skin was removed by an embalmer and will be preserved. How it is to be displayed or preserved, I couldn't even hazard a guess.

What do you think? Weird, or sensible? Would a photo of the tattoos have served the same purpose? Would you have your tattooed skin preserved? Would you carry out this wish for a loved one?

To read about this story in more detail, click here. The photo shown here of Mr. Wenzel's tattoos was found on and is credited to Cheryl Wenzel.

Thursday, November 15, 2018

Mark Vaughan-Jackson: What to do when a will goes wrong

I was interviewed a little while ago by Mark Vaughan-Jackson of the Telegram about my new book. He wrote a really nice article about it, which I invite you to read by clicking here. He did a good job of showing why I wrote it and why other lawyers criticized me for my book-writing.

Do the beneficiaries have to be consulted about sale of estate assets?

A reader wrote to me recently about the rights of a beneficiary when an estate property is being sold. Here is the question and my response.

"My Aunt is the administrator of my grandmother's estate. With there being no will, the estate was left to her three daughters and the children of her 4th daughter. Can the administrator sell the property without notifying all the beneficiaries of the estate? The three children of the deceased daughter were not notified they were beneficiaries until after the house was sold. Can this be done without the input of all those involved?"

I wanted to give some attention to this particular question simply because I hear variations of it all the time. Beneficiaries want to know why they were not consulted about the sale of assets, particularly the sale of a home.

It is up to the executor or administrator to administer the estate in the way that they believe is best for the estate. There are many duties and obligations that govern what an executor may or may not do, such as the obligation to act in good faith, and restrictions against taking money for themselves or causing losses to the estate. They are not obligated to consult beneficiaries about the disposition or sale of specific assets.

The reason for this arrangement is that an executor or administrator is responsible for selling the asset and therefore must also have the authority to carry out the sale. If agreement had to be obtained from every beneficiary for every sale of an asset, no estate would ever be finished. Every estate would bog down in arguments.

It may be hard for a beneficiary to accept, simply because there is such a strong emotional component to every estate-related decision. In this case, the house wasn't just a house, it was their mother's home. This always leads to a feeling of being left out or deliberately snubbed when someone is not consulted. Though I am constantly telling clients to try to keep the emotions under control during estates, I know that can be impossible. All I can say is try not to demonize the administrator without good cause.

Sometimes executors choose to involve beneficiaries in the decisions surrounding the sale of assets, for various reasons. One reason is that they don't want to upset people. Another is that they may think that a beneficiary might be interested in buying or receiving a particular asset. These are voluntary choices made by executors.

In this particular case, it does seem that the administrator did not send out notice to the beneficiaries particularly early in the process. Whether that was intentional so that the administrator could sell the house without any interference is impossible to know.  It could simply be that it took time for the administrator to consult a lawyer about who was to inherit and then gather the names and addresses.

The requirement for notifying beneficiaries differs from province to province. Most of the time, notice is given at the time the application is made to the court for probate or administration. In some provinces, the court won't grant the request until it's proved that notice was given. That's not the same everywhere. Some provinces have no formal rules at all about notifying beneficiaries at any particular time or step in the process. This means that in some provinces, notice in pretty much any form can be given to the beneficiaries at pretty much any time.

While the administrator does have the right to sell the property, this does not mean that the beneficiaries have nothing to say about it. At the end of the estate administration, the beneficiaries will be given their inheritance and will be asked to sign a release. If it turns out that the administrator sold the house at too low a price, for example, the beneficiaries can object to it. They can refuse to sign a release, or they can compel the administrator to pass accounts through the court. This holds an executor or administrator to account for decisions made on behalf of the estate and gives the beneficiaries a voice.

Tuesday, November 13, 2018

Some new ways to access legal info on our website

At my firm, we’re always aiming to improve our services. We have a couple of new offerings  that we think will be very helpful.

Ask a Question
Sometimes the questions people have are too complicated to be answered in the newsletter or on this blog, but they are not quite in-depth enough to require a full hour with a lawyer. I hear from a lot of people who don't want to spend $400 to get an answer. To solve this problem, we’ve added the Ask a Question section to the Resources page on our website. Now users can pay a small fee ($50) to submit their question and get an individualized written answer from me. Click here to access this resource. Questions can come from anywhere in the country. I'll still be answering questions here on the blog as I always have; the Ask a Question feature is intended for those who need more than a general answer.

Search for an Estate
If you’ve been looking for a completed estate but don’t know where to go, we can complete the search for you, as long as the estate is within Newfoundland and Labrador. This is an excellent option for people representing themselves in estate litigation who need copies of previous completed probates or administrations, or for those who are looking for more information about an estate situation within their family. All the user has to do is enter the information, and we’ll find the documents and forward them on by email. The fee is $40, which includes the $20 the Supreme Court charges for copies of documents. Click here then scroll down.

Our popular in-house seminar series is now online. Instead of hosting seminars in our office (we seem to have outgrown the available space), we’ll be hosting live webinars so people across the country can attend. There will be a session every few weeks, and we’ll post the upcoming events on our website and in the newsletter. Don’t worry if you can’t make it to a session – each webinar is recorded and we will happily send it to registered participants after the presentation is complete.

You can also subscribe to our monthly free e-newsletter by clicking here and scrolling down to the bottom left. Archives of all past issues are found here

Sunday, November 11, 2018

Search for missing beneficiary should be proportionate to bequest

One of the most frustrating things that can occur in the administration of an estate is that a beneficiary might be missing. This usually happens when a will hasn't been updated for a few years and contains a bequest that is out of date but still legally valid. The ones I've seen are mostly gifts made by a parent to "all of my children" before one of the children became estranged from the family.

What on earth is an executor to do? He can't just ignore the gift in the will. The bequest doesn't become invalid just because nobody has seen their sibling for years. Neither can he just choose someone else to receive the gift because he is bound by the terms of the will.

There are some possible ways to deal with the missing person's share of the estate, but all of them require court permission for the executor to vary the terms of the will to bypass that missing person. And to get that order from the court, the executor has to prove that he or she has carried out a reasonable search for the person.

I've recently read an article from Suzana Popovic-Montag, an estate lawyer in Toronto. She makes the point in her article that when an executor is searching for a missing beneficiary, the cost and the extent of the search should be proportionate to the size of the bequest. As Ms. Popovic-Montag points out in her article, it doesn't make sense to spend thousands of dollars to find someone to give them a $3,000 gift. Click here to read the article.

This is an area in which an executor must be very careful to avoid personal liability. If an executor fails to make a reasonable search and fails to get a court order directing him or her to pay the bequest to someone else, there is a risk that one day the missing person or one of the missing person's children will show up and demand the inheritance. If the executor has simply kept the funds or given them to someone else, that executor is going to be on the hook personally for the funds.

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