All this will be yours one day: Are testamentary promises enforceable?

The Ontario courts have recently dealt with a case that I believe will be of interest to many readers.

The case concerned a father who kept promising his sons that one day the farm and substantial monetary assets would be given to the sons. However, despite the sons doing all that he asked and making choices and sacrifices specifically to hold up their end of the deal, in the end the father left the sons very little. He gave his assets to his new wife.

The question for the court was whether the bargain between the father and the sons would hold up legally. In this case, it did hold up, at least in part. The sons received the farm. To read more about this decision and the reasons given by the court, click here to see a blog post at www.allaboutestates.ca.

I find the case interesting simply because so many people tell me that someone - a parent, relative or family friend - promised them something from an estate but the promise wasn't upheld. Back in the days when I did estate litigation, I heard this frequently. People weren't happy when I told them I didn't think suing the estate would work out for them.

This case clearly sets out what needs to happen in order for a promise like this to stand up legally. If your elderly uncle casually mentions one day as you sip a beer in the backyard that he is thinking about leaving the house to you, and that's the last you hear of it, then don't count on receiving it. In order for your claim against the estate to be successful, you would have to show that you believed you'd own the house, and that you relied on this promise to your own detriment with your uncle's full knowledge.

As the author of the www.allaboutestates.ca blog post said, people are allowed to lie about the contents of their wills.

There's insurance for that?

Yes, it's true - there is insurance available for executors. It's a new concept and I haven't seen it in action yet so I can't give you an appraisal of its value based on personal or professional experience. This article from Elaine Blades in http://www.allaboutestates.ca/ will tell you more about it. Click here to read it.

I have to agree with Ms. Blades' comment that "The mere fact that the role of executor warrants specialized insurance coverage should give pause to both potential executors and the testators who appoint them." It's time that individuals realized how complex and difficult the role of executor can be, and how easily it can land an executor in legal hot water.

Estate planning in blended families

As estate planning lawyers, we know that blended families can be challenging because of the dynamics of the group. However, many people in blended families are somewhat blind (due to their optimism I assume) to the potential issues. Corina Weigl has posted an excellent article on All About Estates describing some of the issues that crop up in blended families, and talking about one useful solution. Click here to read it.

Decision-making by trust companies

Ever wonder how decisions are made when the executor is a trust company? In this article, Elaine Blades gives you a peek into how things are done. Click here to read it.

The financial cost of caregiving

I found this article by All About Estates to be particularly useful because it gives actual hourly rates and calculations to illustrate what it costs to buy care for an aging family member. If you're exploring options for your own parents, click here to read the article and get a good start on your research.

Two spouses at the same time, and both get support from the estate

In a recent case from Ontario (Blair v. Cooke (Allair Estate)), a judge found that a deceased man had two spouses at the same time, and ordered that the man's estate provide support to both of them. Click here to read a discussion of the case from All About Estates. Note that legislation varies from province to province, so there could be a different result in a different part of the country.

Financial abuse of elders - the role of the police

Whether or not the police become involved in elder financial abuse cases is not clear cut. Often there are family members involved, which makes older people reluctant to call the police. There is frequently a question of whether the person who took the money or assets had permission. Dementia further complicates the issue.

Click here to read a blog post by Elaine Blades at All About Estates.

The police department in many large cities have a separate department dedicated to crimes involving elder abuse.

Tax relief and the cost of supporting elderly parents

Derek de Gannes' posts on All About Estates are always full of great ideas for dealing with taxes, and this one is no exception. If you are taking time off work to care for an elderly parent, you must read this! Click here.

How do you donate your body to science?

If you've ever wondered about leaving your body to science - which generally means a medical school - click here to read some thoughts and advice from the folks at All About Estates.

In my practice, I have met a few people who have requested that their bodies be left to science for research and educational purposes. The number is small compared to the number of people who want to donate organs or tissues for transplant purposes. Note that the comments made in the All About Estates post are for people who want to donate their whole bodies. Many people also address organ donation in their Personal Directive or Health Care Directive.

Fraudulent executor goes to jail

Those of you who have asked me what happens to executors who refuse to do their jobs properly will find this interesting. A judge in Ontario has jailed an executor for 14 months for defrauding an estate and for failing to comply with the court's orders. Click here to read an article about this from All About Estates.

Reviewing and reconsidering your estate plan - when and why?

Our friends over at All About Estates make a good point in this blog post - you have to re-examine your estate plan from time to time. The article recommends that you revisit it about every three to five years, but if you haven't looked at yours in years, don't feel badly about that. I regularly see people who make their first will when they start having children, and don't think about reviewing it until they start having grandchildren. Not that I think that's the best way to do things, but it's the way many people are. So, although I say not to feel badly about it, if your will is that old, PLEASE review it! Click here to read the article.

Spousal rollover on death

If you're an executor wondering about dealing with assets that may be eligible for rollover to a spouse, read this article from All About Estates before making a decision.

Righting a will's (and a testator's) wrongs

Recently I posted about the Werbenuk Estate case in which a will that left everything to one child, leaving out the others, was overturned by the court. I speculated as to what would happen in Alberta, as our law is a bit different. Lawyers all over Canada are looking at the case and wondering what it will mean to our clients in the future. The folks at All About Estates have posted an article about how this case might affect things in Ontario. Click here to read it.

Watch out for scammers: protect your parent's money and assets

This blog post by Audrey Miller gives some ideas about helping to protect the seniors in our lives from telephone and other scammers, many of whom are targeting seniors during the holiday season. Click here to read the article.

Abatement: What to do if there are insufficient assets in the estate to follow the testator's wishes

This article from All About Estates discusses what can happen when there are not enough assets in the estate to pay out all the beneficiaries according to the Will. It also mentions how sometimes people bring this situation on themselves by doing home-made planning such as putting assets in joint names, without looking at the big picture. Click here to read the article.

All Canadians with US property, read this!

This article from All About Estates gives detailed information about what happens tax-wise when a Canadian resident dies owning US property. This is relevant for so many readers, as they own condos in Florida or Arizona or other nice warm places. This is information you need to know as you think about your estate planning. Click here to read the article.

Choose your estate battles carefully

This new article from All About Estates describes what happened in the Land vs. Binkley Estate case from Ontario. Not to put too fine a point on it, the judge blasted the beneficiaries for making two court appearances to fight over a small amount of money when there was really no grounds for a fight. The judge made them personally responsible to pay the legal costs of the lawsuit. I hope everyone who is considering starting a pointless fight over an estate will read this article, because it contains good advice. It will also help you understand how a judge decides who pays in an estate battle. Click here.

Using incentive trusts

I really liked this brief but informative article from All About Estates. It describes some situations in which trusts are used to help bring about certain behaviours in beneficiaries. Interesting stuff. Click here to read it.

Capacity assessments - should you get one?

In this blog post from All About Estates, Ms. Sweatman talks about the pros and cons of having the court order that a mental capacity assessment be done. This is something we haven't discussed on my blog before, so I thought it would be of interest to those of you involved in a case - or about to be involved in one - where capacity is the issue to be decided. Click here to read the post.

Till Death Do Us Part, Quickly - Then I Inherit

Here's a financial path I hadn't considered - that of predatory marriage partner. Apparently marrying an older, wealthier person is on the upswing as a means to achieving financial ends. This arrangement has always existed, of course, but some say its prevalence is growing. Nah, I think I'll stick with practicing law.

Click here to read the article from All About Estates.