Say what you mean in your will, because a court might not figure it out for you

One of the biggest drawbacks of home-made wills is that people are not very good at making their intentions clear to others. Even when wills are made by lawyers, from time to time there is a clause that is unclear. When this happens, the executor will have no choice but to resort to the courts for help in figuring out what the heck to do with the estate.

A new case from Nova Scotia has clarified what the court is and is not prepared to do in these situations. The case, from December 2012, is In Re Das, and revolves around a will made for Mr. Das by his lawyer. The will was somewhat complicated, and problems arose with an account from RBC Dominion Securities worth about $1Million.

There were two problems with this account, and the different ways the court dealt with them are good examples of what a court will fix and what it will not fix.

The first problem was that there was a typo in the account number of the investment in the will. The court looked at all the evidence and agreed that it was  just a typo. The court said it was pretty clear that Mr. Das meant to mention the correct account number, so the will could be relied upon as if the proper account number had been included.

The second problem was something much more troublesome. Mr. Das specifically excluded the account from the distribution of certain assets of his estate to his wife and daughter. But then he wasn't clear about what was to happen to the account. The way the will was worded, the account might have been intended for charities mentioned in the will, his wife or his daughter in some proportion.

The court said that based on the wording of the will, as well as outside evidence, it was impossible to tell what Mr. Das had intended to do with that account. The court said that it could only speculate, and that they did not believe that speculation was their role. In the end, they declared that the investment account was not covered by the will and therefore must be distributed according to the intestate laws of the province.

The case makes it clear that the responsibility lies on each of us to make sure that our intentions are properly expressed in our wills. The courts will help out when they can, but they've said they won't simply make things up where the evidence doesn't exist.

To read more about this case, click here to read a blog post by lawyer Chris Staples.

My personal advice to those of you who are making will is this. If possible, find a lawyer who specializes only in wills and estates. If no such lawyer is available in your area and there isn't a major centre nearby with that expertise available, try to find a lawyer who you know has done a good number of wills. Secondly, this is no time to cheap out. Sure, you might save a couple of hundred dollars, but the legal costs your estate pays later could be in the tens of thousands.

Refuse to pass accounts? Off to jail with you

This new case from Ontario should make out-of-control executors think twice about their refusal to conduct the estate properly. In Walling v. Walling, the beneficiaries of an estate got tired of trying to get the estate executor to deal with the estate and his refusal to account for what he'd done so far.  They applied to the court for help, and the court ordered the executor to pass his accounts, and fined him $1,000. He still didn't pass them so he was fined again for $1,500. By this time the judges were sick of him too so when he still failed to pass his accounts, he was put in jail for 7 days for contempt of court, and ordered to pay costs of $2,000.

Obviously I don't know why this executor refused to pass his accounts. But whatever the reason, I hope it was worth $4,500 and a week in jail. So far.

Read the full case here.

BC judge rewrites woman's will, giving daughter millions more

There is another new case from BC (estate of Norma Lougheed) in which a judge overturned an individual's will to redistribute the estate. This time it resulted in a daughter receiving another $5million over and above what her mother had left her. Click here to read the story.

I read some of the comments readers had attached to that story in the Globe and Mail, many of whom were outraged at the decision. One comment I read several times was "what's the point of making a will if it's going to be changed anyway?" If that's how you're reacting, please keep in mind that not all jurisdictions have the same law (the Wills Variation Act) as BC.

Court declined to approve executor's accounting

On this blog we talk quite a bit about what an executor should and shouldn't do when acting on behalf of an estate. This story is about what not to do. It involves an executor who included a charge for $96,000 in accounting fees. The judge refused to approve the accounts. The judge in this case is giving the executor a chance to give some evidence backing up that fee, which the judge thought was way out of line. It remains to be seen what the judge will decide to do in the end. Click here to read this story about the case, called Re Hall Estate, from the blog of BC lawyer Stan Rule.