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.

"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.

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.

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.

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.

Our fall seminar schedule is up

I love this cartoon, because it seems to me that this exact conversation must happen a lot. The topic of estate planning is brought up but not carried to its necessary conclusion. I get it; talking about dying can be upsetting or uncomfortable. But it sure is easier when you have the facts and information you need, isn't it? That's where I come in; I'm happy to help my customers arrange things so that the kids are not left with a mess to clean up.

To help get everyone into the spirit of planning and perhaps to light a fire under a few reluctant individuals, we have set up our fall seminar schedule. We'll be bringing back some of the customer favourites including Executor Boot Camp and the always-sold-out Top 10 Estate Planning Mistakes. And for our customers who like to attend the entire series of seminars, we are adding a couple of new ones, namely Being a Beneficiary and Bulletproof Your Will.

All of these seminars are held at our office in small groups that encourage questions from the audience. Since we are in Newfoundland where people love to have a good time, the groups also seem to encourage a lot of tea-drinking, story-telling, and a heck of a lot of laughing.

To learn more about our upcoming seminars including content, cost, location, etc, check out our webpage or see the "seminars" tab at the top of this blog. The September Executor Boot Camp is already partially sold, so make sure you register as soon as you know which seminar(s) interest you. Register online if you wish, or if you prefer to speak with us, call Chelsea at 709-221-5511 or email her at chelsea@butlerwillsandestates.com.

When your spouse passes away, don't forget to take his or her name off the title to your property

If you're a widow or widower, did you take your deceased spouse's name off  your property? If you're like most people, you didn't. Sometimes failing to take that step comes back to haunt your kids who try to deal with your estate later on. Recently a reader asked me about a scenario like that. Read on to see his question and my comments.

"I am the executor for my mother's estate and the only other beneficiary is my sister. Our father passed away many years ago. I ran into a snag. There are 5 parcels of land that my parents purchased together. Three were joint tenancies and I was able to go through probate and change the names on the deeds to my name. But two are tenants in common so I can't get my father's name off the land. They tell me that I have to open my father's estate and pay probate tax on his portion in order to remove his name. Does this make any sense? Basically I will be paying probate tax twice, once for my mother's estate and once for my father's."

Yes, this does make sense to me.

When people hold property as tenants in common, each of them owns half (or some other defined portion) in his or her name alone. This is quite a different set-up than joint property. A tenants in common arrangement does not have a right of survivorship. You were able to move the joint tenancy properties because all you had to prove was that your mother lived longer than your father and that you are your mother's legal representative. Joint property passes outside of a person's will (that is, it is not controlled by the will).

Your father's half of the tenants in common properties, however, must be dealt with according to his will because he and your Mom did not own them jointly. To transfer real estate in one person's name, a will has to be probated. Because they are his assets, it has to be HIS will that is probated. In the absence of probating your father's will, you have no right to sell, transfer, or take his property. Probating his will gives you the legal authority you need to proceed.

This is really not an uncommon scenario. I see widowed people every day who tell me that they have never bothered to take their deceased spouse's name off the property. They know that they have a right of survivorship because of the joint tenancy so they just don't deal with it. Sometimes this works out alright, but as your case shows, sometimes it doesn't.

People often find it a pain in the neck to go through the process that they think of as simply jumping through hoops. However, the system is set up the way it is so that some person off the street cannot just show up and take a person's property. Proof and legal authority are needed to prevent fraud.

Had your Mom realized that two of the properties were set up as tenants in common, and had she realized what that meant in terms of the future, she might have dealt with their titles in her lifetime. That would have been ideal, but as I said, many people just don't realize that it's important.

As for paying the probate tax, I don't believe you will be paying it twice. In  your father's estate, you will pay probate fees only on the portion of the properties that are in his name. In  your mother's estate, you'll pay only on the portion that's in her name. There is no duplication there.

What is a prenuptial agreement and who should have one?

I don't  usually blog about family law topics such as prenuptial agreements. In this case, however, the article was at least in part about how a pre-nup would work if you die without a will. Malcolm Morrison of Financial Pipeline interviewed me on this topic, and you can check out his article by clicking here. They have tons of other great articles, too.

Grandma's will is pretty unpopular. Was she too old to make a will?

Isn't it funny how an older person who makes an unpopular will is often accused by his or her family of not knowing what he or she was doing? Only the ones who agree with the disposition under the will are the ones who think the senior had mental capacity. A reader recently sent me a note which is a great example of that sort of thinking:

"My grandma made a new will when she was 95. My aunt always shared my grandma's cottage with us while she acted as grandma's power of attorney, and all of us grand-kids have keys to it. Now my grandma is willing the cottage to one of her daughters and we think it's because she didn't want it sold out of the family. The one who is getting the cottage is not being fair or letting us use it. Is there any law saying 95 is too old to make a will?"

No, there is no law saying that 95 is too old to make a will. I personally have made wills for people more than 100 years old. The litmus test is not age but mental capacity and plenty of seniors have full mental capacity for their entire lives.

I'm having trouble with your assumption that what your grandmother says in her will is not what she really wants. If she didn't want to leave her cottage to her daughter, she didn't have to. If she wanted to leave it to her grandchildren, she could have done so. The fact that her intentions for her own property do not match your wishes just doesn't matter. She can do what she wants with her own cottage. You'll have to suck it up.

It also baffles me that you think giving the cottage to her daughter somehow defeats an intention to keep it in the family. Last time I looked, a daughter was family.

Assuming that your grandmother has mental capacity to make a will, she can leave her property to whomever she wishes. It's unfortunate for you that it upsets the status quo, but that does not mean you should be looking for ways to overturn her will. I notice that whenever a senior makes a financial decision that is unpopular, his or her family members automatically turn to the possibility of mental frailty on the part of the senior, rather than looking at the possibility of sour grapes by the rest of the family.

I cannot tell from your question whether your grandmother made her will before your aunt started acting as her POA. In terms of mental capacity, this could be problematic. If she made her will while the POA was in effect, it could cast doubt on her ability to make the will, based on the fact that a POA is not usually used while the donor still has capacity. Even that is not a hard-and-fast rule though, because sometimes seniors do put immediate enduring POAs into effect if they want help with the banking.

You should know that if your grandmother's will were to be challenged successfully, you are not likely to be a beneficiary of her estate anyway. Intestacy laws would not include you unless your parent on your grandmother's side died before your grandmother did. So think twice before  you start wishing that will away.

So, you think it's a good idea just to handle the estate yourself without telling the executor?

Even after all these years, I am astonished at the things people take into their own hands without even a clue about what they're doing. Legal rights are tossed to the wind when someone thinks they know a cheaper or easier way than the law prescribes. I know that sometimes people get away with these things because nobody else objects or realizes what's happening but that doesn't make it legal.

Recently a reader wrote me a note that literally made my jaw drop. He or she decided not to worry about small details like not being the executor and just barged forward with the estate, regardless of rights or laws. Read on for the reader's note and my comments.

"My father passed away. I am not the executor, a relative is, however I am just doing it myself to save money as everything was straight forward and I am paying all bills as they come in. I felt there was no need to probate. So far I have issued one cheque to myself and one to my sister in equal amounts, (as will states it is 50-50 between us) and we are leaving several thousand in the account to cover bills as they come in. Question we have just received a cheque to the Estate of my Father, so don't know what to do with it. Can we open an estate bank account if we did not probate and are not the Executor?"

What on earth are you thinking?

None of the things you've been deciding are legally your decisions. You didn't think probate was necessary? That's not your call. You didn't hand over the will to the executor? That's not just heavy-handed, it's unlawful. YOU WROTE CHEQUES TO YOURSELF?

I simply cannot believe how people stumble through these things without either landing in jail or being sued for everything they own. I suppose the worst doesn't happen simply because the other people around you don't have any more of a clue than you do and just let you get away with it because they don't know any better.

No, you can't open an estate bank account! Why on earth would you be allowed to do that? Do you honestly think just anyone can open an account for other people's money? Just to be clear here, you have absolutely no legal right to accept money addressed to your father's estate, nor to open accounts for him, and certainly not to write cheques to people out of his funds.

Naming someone as an executor is not just filling in a blank on a piece of paper. It conveys a legal right and a legal responsibility to fulfill the directions in the will. Your father chose someone to look after his affairs and it isn't you. You have simply stepped in and removed the executor's legal right to administer the estate because you felt like it. The executor could sue you for that. Does the executor know this is happening? Is he or she allowing the estate to be carried on by someone else with no legal authority? If so, you may have placed him or her in a dangerous legal situation as well.

Seriously, fix this, okay? Stop trying to open an estate account before the bank catches on to what you're doing and shuts everything down. Get together with the executor and hand over the original will and all your paperwork. Let the executor figure out how to salvage the situation and hope that he or she doesn't decide to sue the pants off you while setting all of this straight.