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  #121  
Old 11-09-2017, 09:48 AM
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Default The Law Show has come to an end..

The Law Show has come to an end
Lynne Butler
The Law Show on VOCM radio has come to an end. We sincerely hope you enjoyed listening to the program weekly for the last seven months, but we can no longer squeeze enough time into the week to continue with the broadcasts. We are in the process of loading all of the shows onto our website at ]www.butlerwillsandestates.com for your (free) listening pleasure. Transferring seven months' worth of shows is a big project, but we will let everyone know when the podcasts are up and running.
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  #122  
Old 11-15-2017, 09:12 AM
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Default Blended families and the passage of time both complicate estate claims

Tuesday, November 14, 2017
Blended families and the passage of time both complicate estate claims
Lynne Butler-Lawyer Canada

Real life is messy. That's just a fact. It's not always possible to give "yes or no" answers to questions because there are so many intertwined rules tangled up with complicated facts. A reader wrote to me with a really interesting question about a family that split up a long time ago. Following are the question and my comments:

"My dad's parents separated before he was born. His birth father remarried and had one son. My dad didn't have a relationship with his father until he was an adult. His half-brother mentioned some items being left in their father's will to my dad but he has never received them. He doesn't know if anything else was left to him. Does he have a right to part of the estate even if he wasn't named in the will? The second wife outlived my dad's father. Would that in anyway effect my dad inheriting or his ability to contest the will? My dad's not interested in "rocking the boat" but I would have no qualms about looking into it after my Dad dies. How do I go about getting a copy of the will?"

There are several things to consider here.

Something that you did not mention in your note is adoption. You did not say whether your father's mom re-married or if she did, whether her husband adopted your father. I'll therefore assume that he was not adopted by anyone. If he had been adopted by anyone, the discussion would end right here, since he would legally no longer be the son of his biological father and obviously would have no claim.

Whether your father has a right to a part of the estate other than what the will gives him is doubtful. If your grandfather had died without a will, there could be a claim that your father had an equal right with other biological children. However, there is a valid will, so your father would have to prove that for some reason he was entitled to a share even though he was not given one. Most people think that parents must leave their estates equally among their children, but that is not the case. There is no obligation to leave anything at all to an adult child who is not financially dependent on you, and who is not physically or mentally handicapped so that he could not earn a living.

Even if your father was for some reason able to bring a claim, you said that your grandfather's wife outlived him. Most likely the bulk of his estate went to her. Any claim brought by your father would have to be stronger than her claim as a wife since they'd be competing for the same assets. This of course, refers to a claim against the residue of the estate. If your father was specifically left certain items, he need only show up to receive them; he does not have to compete with anyone to receive those gifts.

Another fact to consider is that it's likely that your grandfather and his wife owned many of the assets as joint owners. Most spouses have both names on the house and the bank account. If they did, those assets wouldn't even have been in your grandfather's will. Neither would assets with direct beneficiaries such as his RRSP or life insurance policies. It's pretty common for married couples to set things up between themselves so that if one dies, the other one automatically gets to keep the bulk of the estate. In other words, there might not be much to make a claim against.

As for getting a copy of the will, you have two choices. You can ask the executor of the estate for a copy. You are not a person who is entitled to see the will so you cannot force the executor to give you one if he or she doesn't want to. Don't be surprised if this request is refused. Your father, on the other hand, has reason to believe that he is a beneficiary under the will and is entitled to ask the executor for a copy. Your second option is to do a search at the probate court to see whether one has been filed there. Once wills are submitted to probate, they become public documents. Not all wills are probated but it is worth a shot.

It sounds as though your father is not interested in contesting the will, which is probably for the best given the reasons I've outlined above. You, however, sound as though you might wish to do so. I can tell you that the passing of time does not help estate claims. Estates are distributed according to the information at hand. Over time, property disappears or loses value. Documents are destroyed or lost. People pass away and items in their possession are disposed of without anyone necessarily knowing that one day someone might show up to contest an old will. None of this gets any easier as time ticks by.

In any event, you are not a person who has any right to contest your grandfather's will. You personally have no claim against his estate. If your father names you under an Enduring Power of Attorney and if that POA is actually activated while your father is alive, you could look into it for him. In particular, you might ask about the items mentioned by his half-brother. Alternatively, if you are the executor named in your father's will, after his death you could look into it. But as I've said, even if there is some basis for a claim, which I doubt, there is the problem that there will be no assets left to claim against.
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  #123  
Old 11-30-2017, 09:17 AM
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Default JP Morgan says family awarded $8 billion deserves nothing

Thursday, November 30, 2017
JP Morgan says family awarded $8 billion deserves nothing
Lynne Butler

In a recent American case, a jury awarded $8 billion to the family of Max Hopper, who died without a will. Mr. Hopper's estate was about $19 million. JPMorgan Chase & Co (our Canadian equivalent would be a trust company) was hired to administer the estate.

The family took the administrator to court because it wasn't happy with how things were going. It was the usual kind of thing we see in court constantly: the family said that the administrator was taking too long and favouring one beneficiary over another. The issues are the same no matter the size of the estate.

In this case, the monetary award for the family was huge because it had two major components. One part of the award was to recover the losses the family said it suffered due to the administrator's handling of the estate. The other part of the award was made up of punitive damages, which means the jury was punishing the administrator for its behaviour.

As you can imagine, JPMorgan Chase & Co is appealing the verdict and the award. This matter will probably be in court for many years to come. Legal fees are reported already over $3 million. To read more about this case, click here
https://www.bloomberg.com/news/articles/2017-11-11/jpmorgan-says-family-awarded-8-billion-verdict-deserves-nothing to see a story from www.bloomberg.com.

Why a person with an estate of $19 million and a blended family did not make a will is simply incomprehensible. I can only assume that Mr. Hopper thought he had more time, as I hear often enough from people who are reluctant to make wills. In this case, though, I'm not sure that the fallout from the failure to make a will is really the take-away. Whether JPMorgan & Chase was appointed by will or by the court would not seem to be relevant. What is interesting is the enthusiasm of the jury to punish an estate administrator for mis-handling the estate.

Perhaps this is the trend we will be seeing. Here in Canada we've never had an award in an estate anything like $8 billion and we probably never will, but we do see more and more litigation against executors who are perceived to be mis-handling estates. As a general rule, executors who are honest and diligent don't have much to worry about in terms of being sued, but those who are being careless, negligent, or downright dishonest should realize that people in general seem to be fed up.
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  #124  
Old 12-07-2017, 09:07 AM
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Default It took 16 years for this son to win the legal battle against a predatory caregiver

Wednesday, December 6, 2017
It took 16 years for this son to win the legal battle against a predatory caregiver
Lynne Butler

A man in New Zealand named Leslie Willis installed a baby monitor in his aging father's room to help him keep an eye on his dad, who was sick with cancer. The things he heard through the monitor raised his suspicions about his father's caregiver, Pamela Thompson.

Leslie then searched his father's home and among other things, found a will in which his father was going to leave his entire estate to the caregiver. When Leslie asked his father about this, his father became upset because that will did not reflect his true wishes. The father went to his lawyer and changed the will back to his previous plan of leaving all to his son.

That wasn't all, though. Leslie also found out that his father had bought $50,000 worth of bonds and put them in joint names with the caregiver. Ms. Thompson claimed that she and the father had a close friendship and he wanted to give her this money, even though she had only worked with this family for a few months.

After the father's death, the mess ended up in court, as you no doubt would expect. Leslie claimed that the caregiver had unduly influenced his vulnerable father. The court battle over the $50,000 bonds took 16 years to resolve. Yes, 16 years! Eventually Leslie won the battle but what a horrible ordeal he went through thanks to one greedy person who tried to take advantage of a sick, old man. Fortunately the father had time to make a new will or that would probably still be in court as well.

It's not always a caregiver who tries to take advantage. It could be a friend, neighbour, or someone in the family. This case should serve as an example of how vulnerable our aging parents can be to opportunistic folks.

If you'd like to read more about this story, click here http://blog.tickerlaw.com/caregiver-loses-battle-son-elderly-client/ to see a blog post from the blog called The Sibling Fight (one of my favourite blogs to read) or click here to read the newspaper story that appeared in www.stuff.co.nz .
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  #125  
Old 12-14-2017, 09:10 AM
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Default Are family heirlooms no longer cherished the way they used to be?

Wednesday, December 13, 2017
Are family heirlooms no longer cherished the way they used to be?
Lynne Butler-Lawyer East Coast Canada

The issue of what to do with the stuff in the house, garage, shed, and cabin is being discussed every day. What do you plan to do with yours when you pass away? Are you assuming your children and grandchildren will want your china, stamp collection, and figurines?

I hear this in my office every day. Clients tell me that they are trying to give some of their valued treasures to their children while they are alive so that they can see their children enjoy them, only to find the children won't take them. To read more about this issue, click here http://www.everythingzoomer.com/family-heirlooms/to see an article from www.everythingzoomer.com.
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  #126  
Old 12-17-2017, 09:32 AM
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Default Can I say in my will that my sons' ex spouses can't get money going to my grandchildr

Saturday, December 16, 2017
Can I say in my will that my sons' ex spouses can't get money going to my grandchildren?
Lynne Butler-Lawyer East Coast Canada

Do you ever worry about an ex son-in-law or ex daughter-in-law getting their hands on money you leave to your grandchildren? If so, you're not alone. A question about that topic from a reader prompted today's discussion, so read on.

"Can I state in my will that any monies going to my grandchildren can not be gotten by my sons ex-spouses if my son have passed away and their children are minors?"

This is a topic that comes up regularly in my meetings with clients. Many people leave their estates among their children with instructions that if a child should die before them, the deceased child's children would inherit the deceased child's share. That part is all very well, but the parents are concerned about ensuring that any money that should go to their grandchildren in this situation does actually get to the grandchildren and not to their son-in-law or daughter-in-law. They, rightly, wonder what would happen if the funds were left to a son-in-law or daughter-in-law who then went on to marry someone else. Because the topic comes up so often and has now been raised by this reader, I thought we'd discuss it here today.

The first thing that you need to know about the situation is that if you leave money to a grandchild, or a grandchild becomes entitled to a share of your estate because his or her parent has died, then the grandchild's share is held by a trustee. This will be the case if your grandchild is a minor or has not reached the age you specify in the will. There is a difference between the two because sometimes grandparents say that the grandchildren cannot inherit until they are 21 or older.

The trustee is the person who holds and invests the money on behalf of the grandchild. He or she has full power to decide when to make payments to the grandchild or to third parties on behalf of the grandchildren. The trustee has full control of how the money is spent, as long as he or she is acting in accordance with your will. In the context of today's topic, the trustee becomes important because parents tell me they don't necessarily want their sons-in-law or daughters-in-law to be the ones who decide how the money is spent.

So, who is this trustee we speak of? Unless you say otherwise in your will, the trustee of the grandchildren's money is the executor and trustee of your will. Therefore, your first step in ensuring the money goes where you want it to go is to choose an executor who is going to follow your wishes. As part of this step, make sure you name at least one alternate executor. When there is an alternate available, you ensure that if something happens to your first choice executor, there is someone you trust to step in and carry out your wishes.

If you want to, you can take it a bit further and state that under no circumstances is the spouse of your deceased child to become the trustee for the children. I've put this into wills where there is a concern about an addiction or where the parents of the grandchildren are experiencing marital troubles that my client thinks may end in a divorce.

Another solution is to choose a trust company as trustees of the trusts that would be held for your grandchildren. This makes most sense where there is a lot of money involved, as there is always a risk when you leave a large sum of money in someone's care for a minor. A trust company will stick to the will, has experience with handling trusts, and has professional money managers in-house.

The second thing you need to do is ensure that your wishes are clearly stated in your will. I am talking about stating who gets to own the money as opposed to who gets to control the money. Say clearly that if your child passes away before you do, you want the full inheritance to go to his or her children. Give straightforward instructions about how old the grandchild must be to inherit.

Most importantly, talk about the discretion you are giving your trustee to use the funds for the child. While the child is a minor, can the funds be used for medical emergencies? What about post-secondary education? And what about general support for the child's lifestyle? This is where your executor and trustee will rely on your will to deal with a son-in-law or daughter-in-law who asks for money from the grandchild's trust. If your will says that while your grandchild is a minor, the funds can be used for whatever he or she needs, what is stopping that grandchild's parent from asking the executor/trustee for a few thousand dollars a month to feed, clothe, and entertain the grandchild? If you don't want that, you have to say so in your will.

While I don't like the idea of controlling from the grave, I am all in favour of setting up detailed wills that offer instruction and support for executors and trustees. The stronger your will, the more likely your wishes will be carried out and the less likely there is going to be a struggle between those left behind.
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  #127  
Old 12-21-2017, 09:15 AM
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Default CDN:Millionaire's handwritten notes count as final wishes, court rules

Wednesday, December 20, 2017

Millionaire's handwritten notes count as final wishes, court rules
Lynne Butler-Lawyer East Coast Canada

This month there was a new case from Nova Scotia which caught my attention. Dorothy Gwendolyn Jones died in Halifax in 2015 leaving an estate worth $6,700,000. Mrs. Jones, who was 92 years old and a widow, left a valid will.

Mrs. Jones' executor obtained probate of the will and started working on the estate. While doing so, he found four notes handwritten by the deceased Mrs. Jones. Two of the notes dealt with funeral instructions. The other two gave cash bequests and distributed personal items to various people. The executor submitted all of the notes to the court to find out whether they were testamentary instruments or not. In other words, was he supposed to be following what was in these notes or not?

The judge decided that the two notes that talked about funeral and cremation were not testamentary. They didn't change what was in the will or give away anything to anyone. The judge decided that the two other notes were valid instructions for the executor to follow. The reasons given by the judge were interesting because he talked about trying to figure out what Mrs. Jones intended when she made the notes. Did she intend to add to her will? Did she intend the note to give gifts on her death? Were they just random notes she jotted down to think about later? It was pretty instructive for anyone who is in a similar situation in terms of figuring out whether a handwritten note is a codicil, a Memorandum, or nothing at all. Anyone who wants to read the entire judge's decision can do so http://www.courts.ns.ca/Decisions_Of_Courts/documents/2017nssc300.pdf .

Another interesting thing about this case is this: Mrs. Jones died in September of 2015. The judge released his decision in December 2017. That is two full years while the documents made their way through the court system. Two years while the beneficiaries waited, the executor couldn't get on with his life, and legal fees flowed out of the estate. And think how much worse it would be if there was anyone contesting it! This was a case of steering a basically unopposed application through the court system.



In a recent CBC News story, http://www.cbc.ca/news/canada/nova-scotia/millionaire-s-handwritten-notes-count-as-final-wishes-1.4443951?utm_content=bufferc4762&utm_medium=socia l&utm_source=twitter.com&utm_campaign=buffer lawyer Jessica Lyle speculated that Mrs. Jones might have decided to do handwritten supplements to her will because she didn't want to spend the money to have a lawyer do it. She may be right, as people certainly do think it's a way to save money. However, as pointed out by Ms. Lyle and must be obvious to everyone, there was absolutely no cost saving when you weigh the price of a will against the price of two years in court.

When you pay a lawyer to prepare a will, you're not just buying a piece of paper. You're paying for the advice and the experience of the lawyer. You're paying for the lawyer's expertise in applying estate, tax, and family laws to your specific situation. And of course you're paying for the peace of mind that your will won't have to spend two years or more in the court system before your family can have your estate.
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  #128  
Old 01-02-2018, 10:00 AM
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Default CDN:The why and the how of undue influence allegations

Monday, January 1, 2018
The why and the how of undue influence allegations
Lynne Butler-Lawyer -East Coast Canada

I've received a few questions lately from readers who want to know more about undue influence and how that concept is used to challenge a will. This seems like a good topic to look at more closely. This one is going to be packed with legal info, so be prepared to take notes!

There are three basic elements of undue influence:
1. Someone influenced the testator in some way, such as threats, force, trickery, lies, persuasion, shaming, isolation, control over daily living, or persistent requests. It could be a combination of more than one method.
2. The influence overpowered the testatorís mental or emotional freedom so that the testator felt he or she had no choice but to go along with it.
3. The testator made a will that he or she would not have made without that influence.

If you allege undue influence against a specific will in court, you have to prove that all of these elements existed. Proving one or two of them is not enough. The end result of all of these elements is that the testator ended up signing a will that was more about what the influencer wanted than what the testator wanted. In our legal system, a will like that is not valid because the testator did not make it freely and voluntarily.

Here are some examples of situations in which a person was unduly influenced to make a will that he or should would not have made otherwise:
- An elderly mother is persuaded by her youngest (adult) daughter to make a will that leaves out all of the other children. The youngest daughter does this by telling her mother repeatedly that the other children donít really care about their mother the way the youngest daughter does and by presenting the actions or words of the other children in falsely negative ways.
- A disabled, elderly man is told by his caregiver that unless he makes a will leaving a significant sum to the caregiver, the caregiver is going to put him into a home where he will be alone and mistreated.
- A son takes his elderly mother to a lawyer and directs his mother to make a will leaving her house, which is almost her entire estate, to the son. He rushes her through the process, and answers questions for her when the lawyer asks them. She doesnít want to get her son into trouble and is confused as to what is going on, so she just signs the will.

As you can see from looking at these examples, the evidence will include a lot of testimony from family members about what other people did or didn't do. There will be quite a bit of blame and finger-pointing.

There are two major steps in the process of proving undue influence. The first is a chambers application. Chambers is an open courtroom but the procedure is not a full trial. The purpose of the chambers application is very specific: you are there to prove that there is a genuine issue of undue influence that must be heard by a trial judge.

A trial is a long, stressful, expensive process. The reason you go through chambers first is so that the court can weed out the cases that should not be going to trial. The chambers judge is not deciding whether or not you have a good chance of winning; he or she is only deciding whether there is a real issue to go to trial. This step is necessary because, as you can imagine, estate litigation is an emotional powder keg. Sometimes people are challenging wills because they think the will is unfair or they are greedy or they just really hate the people who are getting the estate. People can be emotional rather than rational when it comes to their reasons for challenging an estate. None of those things mean the testator was unduly influenced, so the judge will try to rule out the cases that are being brought for no good legal reason.

If you lose the chambers application, you are not permitted to sue the estate for undue influence. If you win the chambers application, your matter will be given a trial date.

The second major step is the trial itself. This is where the witnesses are called and documents are examined and the trial judge hears all of the evidence. At the end of the trial, the judge will decide whether or not the testator was unduly influenced into making a will that he or she did not really want.

You will find that it could well take years to get through both of these steps. Leading up to the trial, you will be involved in taking affidavits, examinations for discovery, filing documents, and possibly many other steps. Be sure you can make this kind of commitment if you're thinking of challenging a will.
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..of interest (Webscout)
http://trialcounsel.ca/how-trial-sittings-work/
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  #129  
Old 01-09-2018, 09:41 AM
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Default The executor doesn't keep the estate assets so why should he keep the debts?

Monday, January 8, 2018
The executor doesn't keep the estate assets so why should he keep the debts?
Lynne Butler-Lawyer East Coast Canada

I frequently receive questions here on my blog as well as in person about the exposure of the executor when there are debts in an estate. Something that I see often is an estate where there is no will and nobody in the family will step up to become the administrator because they are afraid of personal liability for the deceased's debts. It's time to get some better information out to people since there seems to be a general misunderstanding about what the executor or administrator is getting into.

An executor is not personally liable for the debts of the deceased or of the estate. That's a pretty hard-and-fast rule.

Recently a reader told me that the car leased by the deceased person had to be returned and this created a bad credit situation. The reader asked me whether the bad credit would now be transferred to the executor. The answer is that no, the bad credit will not affect the executor. Why would it? The lease was not in the executor's name. The payments for the lease were not coming from the executor. All the executor did was step in to return the car after the deceased passed away.

I hear similar questions where the deceased had a credit card balance. Executors and administrators fear that if they are the ones who send the death certificate to the credit card company and tell them that there isn't going to be enough money to pay them off, that the credit card folks will somehow transfer the debt to them.

It doesn't work that way. A creditor can't just decide that someone else is liable for a bill that they are simply not liable for. That includes executors.

An executor's responsibility is to use the estate assets to pay off the estate debts. Sometimes there isn't enough money to go around and the executor has to either rank the creditors in order of priority or pay them all off in part. But the executor is certainly not expected to pony up his or own money to top up someone else's debt.

Look at it this way. The executor doesn't get to keep the assets of the estate, so why should he or she have to keep the debts? The executor only has to pay the debts personally if he or she pays the estate money out to him/herself or to beneficiaries without paying debts first.
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Old 01-14-2018, 09:32 AM
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Default Saturday, January 13, 2018 A caveat was filed and now the estate is at a standstill.

Saturday, January 13, 2018
A caveat was filed and now the estate is at a standstill. What can an executor do?
Lynne Butler-Lawyer East Coast Canada

What happens when someone files a caveat against an estate, brings things to a screeching halt, then does nothing about it? As an executor, you do have options.

"My mom passed away in Sep 2016. I am the executor (son).I started the process with the lawyers to probate the Estate of my mom but the two sisters had put a dispute to stop the process. Two years is coming up in Sept 2018. What can I do to put a closure to this matter?"

You haven't said how your sisters "put a dispute to stop the process" but the usual method is by filing a caveat. I'll assume that's the case here. A caveat is a simple, one-page document that is filed at the court by a party who objects to the application for probate going ahead. The caveat doesn't contain a lot of information and the party who files it is not required to explain why they are filing it. ME....why not, if that person is wasting everyone's time and money?

A caveat is not designed to stop things forever. Its purpose is to ensure that someone with a real issue has notice of what's happening so that person can participate and have a day in court with their issue. It is supposed to ensure that people who believe that a will is fraudulent or that the wrong person is applying as executor or one of many other problems has the opportunity to bring that information to the court.

The usual procedure when someone files a caveat against an estate is that the executor contacts them or their lawyer if they have one, and finds out about their issue with the estate.

If the person who filed the caveat does nothing, it expires after six months. It can be extended.

Assuming that the person who filed the caveat has described to you the nature of their issue, your next step might be to negotiate or mediate with them to try to resolve it. This will depend on what the issue is, of course.

If negotiation is not appropriate or doesn't work, you have another option. You may apply to the court to expunge the caveat. Basically this means that you want the judge to tell your sisters to start a court action on their issue by a certain time or the court is going to remove their caveat so you can get on with the estate. The court isn't going to allow someone to hold the estate hostage for their own amusement or because they simply don't like you. At the risk of sounding cynical, I know that sometimes people really do throw caveats around just to upset others.

Check to see whether there is a caveat filed, or ask the lawyer to do this. If it turns out that your sisters have no real issue and are just being obstructive, they will most likely be ordered by the court to pay your legal fees. If there is a real issue and the caveat has been filed for a legitimate reason, your legal fees for anything to do with the caveat should be paid out of the estate. If this means that the estate is eaten up and the beneficiaries don't get anything, so be it.
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