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Sunday, April 24, 2022

This is my last post on this blog.

This is my last post on this blog.

After 12 years, 2,900 posts, 11,000 published comments, and more than 8,000,000 views, I'm closing the doors on this blog.

Frankly, I can't keep up! I'm running my law practice, which thankfully survived the pandemic. I'm still editing the Mensa Canada national magazine, still chairing the wills section of the Bar Admission Course, and I have a few new writing projects on the go. In a few months, my new book about building your family tree using wills and probate records will hit the bookstores (please keep an eye out for it; I'm really excited about it!). So, there being only so many hours in a day, I had to make some choices.

This website will stay as it is for now because I am told by many, many lawyers and non-lawyers alike that they refer to it often for information. I hope the archives will be useful for those of you working on specific questions. In the near future, I will formally archive it.

Also in the near future, you will see me again on a new, different website! I'll let everyone know when it's live.

Thanks to everyone who read my posts, commented, asked questions, and phoned/emailed me to talk about things I had posted. Writing this blog has been an educational experience for me, and it has kept me in touch with thousands of readers. Hugs!


Monday, April 11, 2022

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.

Friday, March 25, 2022

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

Monday, March 7, 2022

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.


Monday, February 28, 2022

If a murderer cannot inherit from the will of the person he kills, who gets his share?

Have you ever heard that if you are named in a will but you are convicted of murdering the testator, you cannot inherit from the will? In Canada, this is true. But if that happens, then who inherits the murderer's share?

Recently, this very issue was in front of the BC Supreme Court. The deceased was Lois Unger. Ms. Unger left a will in which she divided her estate between her two sons, Clayton and Logan. The will provided that if either of her sons died before her, the son's children would take the son's share. If none of that worked out, there were charities named as alternate beneficiaries. Clayton and Logan were also named as direct beneficiaries on Ms. Unger's TFSA and RRSP. The estate totaled about $860,000.

Things went badly off the rails and Clayton pleaded guilty to second-degree murder of his mother. 

According to public policy, which applies all across Canada, Clayton was disentitled to receive anything from his mother's estate. He could not inherit the TFSA or the RRSP either. The executors took the estate to court to ask who would receive Clayton's share of the estate.

Clayton had a girlfriend who gave birth to a little girl, Adeline, 11 days after Ms. Unger died. While this might seem an obvious choice, the will actually says that grandchildren inherit if a son dies, but Clayton hadn't died. So was his daughter entitled to his share?

Logan's position was that the law says Clayton can't benefit from his crime, and that giving the share to Clayton's daughter is the same as benefitting Clayton.

The court focused on what it believed Ms. Unger intended. The judge awarded the share to Adeline, on the basis that Ms. Unger clearly intended any children of Clayton's to be an alternate beneficiary to Clayton. The funds were to be held by the Public Trustee on behalf of Adeline.

Anyone who would like to read the Unger case in full may do so by clicking here

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