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Monday, July 26, 2021

The Enduring Power of Attorney Answer Book is now available

I am very pleased to announce that our newest book called The Enduring Power of Attorney Answer Book is now available! We had so much positive feedback from our earlier book, The Beneficiary's Answer Book, that we decided to make one for POAs as well. It's great to know that these materials are so helpful to readers.

In this book, we answer 100 of the questions asked most often by people who are working with POAs and need more information and guidance. These are not theoretical questions; they are the practical issues raised by people who have to deal with houses, bank accounts, wills, unhappy relatives, record-keeping, personal liability, and more.  The book is packed full of information, tips, and ideas. It even has a chapter on common how-to questions! Anyone who has been appointed under an Enduring Power of Attorney will find this to be a valuable resource.

The book is $24.99 + HST. You can get a copy online here. If you prefer, you can call us at 709-221-5511, or email chelsea@buterwillsandestates.com and we'll mail you a copy. We can accept e-transfers if you don't like to give a credit card online or on the phone. 

The book isn't yet available as an e-book though we expect to do that in the near future.

As always, feedback is welcome.


Thursday, July 22, 2021

Changes to estate law in Ontario - a visual summary

I didn't create this chart. It was made by Kim Gale, of Gale Law. I wanted to share it because it gives a succinct but colourful summary of recent changes to estate law in Ontario. 



Friday, July 16, 2021

If the gift you are left in a will no longer exists, you are out of luck

What happens if you are left a gift in a will, but when the testator passes away, the gift is no longer in the estate? Are you out of luck? Do you get something else instead? Do you get money instead? These questions come up frequently and can create a lot of confusion.

When the gift named in the will no longer exists, the legal name for the situation is ademption. The gift is said to have adeemed

As a general rule, the beneficiary who would have received the gift does not receive anything. There is usually no substitution made or money paid instead. 

This topic was discussed recently in the new case of Best v. Hendry in the Court of Appeal for Newfoundland and Labrador. In this case, Pearl Penney made a will in 1981. In it, she left her house and contents to her niece, Marie Hendry, and the residue of the estate to another niece, Cathy Best. The executor of the will was Ms. Penney's lawyer. Years later, Ms. Penney developed dementia and moved into a care facility. At that time, her house was sold and the money put into the bank.

After Ms. Penney's death, the two nieces met with the lawyer/executor and they discussed what to do now that the house was no longer in the estate. At the executor's suggestion, the nieces agreed that the one receiving the residue (Ms. Best) would pay a sum of money (about a quarter of what the house sold for) to the other niece (Ms. Hendry). 

However, she never did pay it. Eventually Ms. Hendry took the matter to court and claimed the full sale proceeds of the house. There was enough money in the estate to pay this, but the question for the court was whether she was entitled to receive it.

The matter was decided by the court and then went to the court of appeal. The end result was that the court said Ms. Hendry was not entitled to receive anything from the estate. The house and contents had adeemed and Ms. Penney could not give what she did not have. The will didn't say that she was supposed to get anything else, such as money. 

There was a lot more going on in this case than I have mentioned here (the students in my bar course this fall will hear more about it). One of the other issues was whether the executor had done the right thing by suggesting and allowing the agreement between the parties. This was further complicated by the fact that the executor was a lawyer, and was in fact the lawyer who had prepared the will and had an opinion on what the testator had intended to do in her will. The Court of Appeal accepted that the executor acted honestly and with good intentions, but still found him liable for his conduct with respect to the estate.

In any event, this case does help clarify that when an item is left to you in a will (even a big item like a house) and that item no longer exists when the testator dies, you are not going to inherit it or a replacement for it.


Monday, July 5, 2021

New video: "Estate Litigation - what it's like and what it can cost"

We've added another new video to our ever-expanding YouTube channel. This one is all about estate litigation - what's involved and what it costs. As always our channel is free to watch.





Saturday, July 3, 2021

The difference between parental permission and legal authority

Things have been extremely busy around our office lately. We have noticed a trend in our incoming new files; we seem to have an influx of adult guardianship matters. We are getting an average of one new guardianship file every day.

Adult guardianship requires an application to the court to appoint someone to look after a parent or other relative who needs help with decision-making because mental incapacity is making it difficult for the person to handle things alone. The sort of decisions in question can be financial or can be medical, or both. 

If the parent has put an Enduring Power of Attorney (for financial matters) and a HealthCare Directive (for health and medical matters) into place, adult guardianship should not be needed. The subject matter is the same. Unfortunately, some people will not face the fact that they need these documents.

A parent who has prepared the POA and the HealthCare Directive has several advantages over one who has not put documents into place. The one who has prepared documents has exercised his or her choice of who can make decision for them. They do not have to hope that the right person will apply or that there won't be a fight among the kids as to who should be taking care of them. They also get to personalize their documents to limit certain actions or to expand them. For example, some parents like to include a clause giving away certain household items in the event that they move into a care facility.

There is also a financial advantage; preparing a POA and HealthCare Directive is MUCH less expensive than an application to the court to appoint a guardian. All in all, refusing to have these documents is choosing to do things the hard way.

Despite the fact that more and more families are being faced with the need for adult guardianship, there is still a reluctance among some seniors to put documents into place. The most common reason I hear for not needing these documents is "my son/daughter knows what to do". I'm sure that's true. The problem is whether they will be allowed to do it. A bank is not going to simply release your information or your funds to your son or daughter, no matter how well you trust the kids. The land registry won't allow them to sell your home or transfer your cottage. The insurance company, the financial advisor, the pension administrator, the motor vehicle registry, and the doctors probably won't tell them anything at all, never mind let them do anything.

There is, after all, a big difference between parental approval and legal authority.

These are essential documents. I have no doubt that sons and daughters are more than willing to help their parents when the time comes. But the parents need to be sure they've set things up so the kids don't need to go through the courts for permission first.


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