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CDN:What is a Wife Entitled to if her Husband Dies Without a Will?

Post by Webscout » Sun Jan 05, 2020 7:07 am

What is a Wife Entitled to if her Husband Dies Without a Will?
In Ontario, the Succession Law Reform Act and the Family Law Act intersect to create rights for the surviving spouse (husband or wife) of the deceased.

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https://www.ontario.ca/laws/statute/90s26
The Family Law Act

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https://www.ontario.ca/laws/statute/90f03
defines a spouse as a married person, and the term spouse in this act does not include co-habiting parties or common law partners. Under this Act, a married spouse is entitled to receive one-half of the amount by which the deceased’s net family assets exceed the net family assets of the surviving spouse. This “equalization payment” ensures that the surviving spouse has the opportunity to share equally in any increase in the value of the property that the couple earned over their marriage. The surviving married spouse must elect to accept this payment OR to take what they are entitled to under Part II of the Succession Law Reform Act.

Under the Family Law Act the married spouse also has the right to remain in possession of the matrimonial home for a period of 60 days following the death of their spouse, on a rent-free basis.

On the other hand, the Succession Law Reform Act gives all spouses (married and common law) whose spouse dies without having made a valid will a preferential share, being the right to receive the first $200,000.00 of assets from their deceased spouse’s estate, and in addition they have the right to share in the balance of their deceased husband’s estate as set out below. The surviving spouse must choose between the entitlement to equalization and the property rights that they would receive under the Succession Law Reform Act.

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CDN:A transgender beneficiary................

Post by Webscout » Thu Jan 16, 2020 9:14 am

Wednesday, January 15, 2020

USA? I would think that this would apply, but check it out to be sure.

A transgender beneficiary now has a different gender and name from the will. Is that a problem?
Lynne Butler, BA LLB Canada

Sometimes the logistics of wills and estates procedures may appear to be more complicated than they really are. For example, a reader recently asked me an excellent question about any problems that might arise because a beneficiary named in a will has changed gender and name from that shown in the will.

Here is the question:

"I'm transgender, so I might be listed under a different name in the will, referred to with the wrong pronouns, etc., would that change anything?"

The good news is that even though very little has changed fundamentally with wills in the last 100 years or so, the processes and procedures do get updated (slowly, I admit, but we get there). The change in gender and name will not prevent the beneficiary from inheriting the share given in the will. There is a simple way to deal with this reader's dilemma.

Let's say the beneficiary was named in the will as "my niece, Sara Smith." Since the will was made, Sara has become Sam Smith, a male. Everything about this gift seems different from what's in the will, but it's the same person. The important part of the gift is not the designation as a female. The important part is that the aunt wanted to give a gift to a specific person. The obligation of the executor of the will is to carry out the intentions of the testator (the person whose will it is). This is also the goal of any judges who may be involved in the case; the testator's intentions are paramount, so ways and means must be found to make those intentions happen.

The easy solution is for the executor to describe the change in the affidavit that accompanies the application to the court for probate. Every probate application contains such an affidavit; all the executor has to do is modify it to ensure that the beneficiary's situation is made clear. This is the same sort of procedure that is used when a woman who was single when the will was drawn up later marries and takes her husband's surname. Her name might be different from what shows in the will as well, but it is easily explained.

The affidavit I have mentioned is, like all affidavits, sworn under oath before it is given to the judge. Because it is sworn, its contents are evidence before the court.

If the will is not probated and the estate is administered without ever going in front of a judge, the changes can (and should) still be addressed. The most likely time and place to address this is at the end of the estate administration when the executor provides his or her written accounting to the beneficiaries. To explain to the rest of the beneficiaries why a gift to Sara was given to someone called Sam, the executor would include a sentence indicating the changed circumstances.

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General CDN Estate Info

Post by Webscout » Wed Feb 19, 2020 8:45 am

Release forms and instructions for all provinces
Posted by Lynne Butler, BA LLB

Since I get so many requests on this blog for Release forms, I've decided to make them available. I'm preparing kits that contain a blank template Release form, a completed sample, information about how and when to use a Release, and VERY detailed instructions on how to complete the form. There will be a separate kit for each province, since they are all very different. I am speaking about the Release that a beneficiary signs to approve of the actions of the executor upon the winding up of an estate.

I can't provide legal advice to everyone who purchases the kit, since without the details of the estate I can't recommend what is right and what is not. Without legal advice, you're using the form at your own risk. However, for those of you who have administered estates on your own, this is for you.

So far the only ones ready for purchase are Alberta and Newfoundland/Labrador, the two provinces in which I am licensed. All of the other kits are well under way and will be made available as soon as I can find enough hours in the day to complete them! Right now you can purchase a kit by calling our office at 709-221-5511 to pay by e-transfer or credit card. Kits are $50 each and you can make as many Releases as you need from one kit.

In the near future, all provinces and territories will be available and you'll be able to buy them online. In the meantime, if you want to hear more about Releases, here is our YouTube video about them.

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https://www.youtube.com/watch?v=wKNoowFqDFw
Executor waits 10 months (so far) for someone to call and tell her what to do
Posted by Lynne Butler, BA LLB

I don't know who I feel the worst for in this reader's question. The executor who is in way over her head? Or the beneficiaries who have to rely on a completely unprepared executor?

"My grandfather passed away 10 months ago. My aunt is in charge of everything. She has not voiced anything to me and my sister other than "no one's contacting her and she's contacting a lawyer to see what's up" so my question is how do I go about finding out if I'm able to view his Will if I'm entitled to or not and where I would go to find it."

This is not the first time I've heard that executors are waiting for "someone" to contact them after a loved one has passed away. I have to wonder exactly who they think is going to contact them. If they are a family member and the executor named in the will, they know more about the situation than anyone.

This is startling, to say the least. Obviously the executor knows she is "in charge of everything" but it has taken her almost a year to realize that being in charge of everything might involve more than simply waiting to see if her phone rings and hoping that someone will show up and tell her what to do. The executor's passivity has already caused a significant delay. Also, the odds of some of the assets losing value or disappearing before the executor gets control of them is huge. In the last 10 months, has anyone looked after the deceased's house or vehicle? Has anyone paid for the funeral or insured the house or filed a tax return or notified Old Age Security? It seems unlikely.

Unfortunately, this executor's passivity could cause her a personal loss. She apparently has no idea that she carries personal responsibility for the assets of the estate. If it comes down to having to compensate beneficiaries for losses, saying "I didn't know I had to do anything" will not cut it.

I don't mean to sound overly harsh about executors in general. If I thought everyone knew how to handle estate matters, I wouldn't have been writing this blog for the last 10 years. Executors have a tough job and I am well aware of that. But executors like this one make things so much harder on themselves, and particularly on the beneficiaries.

For heaven's sake, if you're named as an executor in a will for someone who passes away, don't wait ten months to do something. Your responsibility starts right away. The beneficiaries and family members will be looking to you for answers, as they are in this case. If you don't want to do the job, you don't have to, but you do have to officially renounce it in writing before anyone else can take your place.

Doesn't the fact that people keep asking you what's happening with the estate give you an idea that you are supposed to know what's happening?

If you're going to "be in charge of everything" you have to actually step up to the plate. It doesn't have to be within days of the person's death, especially if it was someone very close to you, but don't let it go untouched for months. Go see a lawyer whenever you are puzzled by a legal document or legal obligation.

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Re: The LEGAL/JUSTICE POST

Post by hojoos » Thu Feb 20, 2020 3:14 am

Who can tell me where I can order them online. I could find these drops in the stores in my town. I am based in the area https://worldpostalcode.com/united-stat ... iladelphia. Another thing I would like to know it is safe to deliver them by post? Who did it? I hope it will arrive safely. Also, it would be interesting to hear what results you achieved. Please share your observations, thank you!
Last edited by hojoos on Sun Mar 08, 2020 11:39 am, edited 1 time in total.

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Re: The LEGAL/JUSTICE POST

Post by Webscout » Thu Feb 20, 2020 8:18 am

@hojoos

What do you want to order online?

So far the only ones ready for purchase are Alberta and Newfoundland/Labrador, the two provinces in which I am licensed. All of the other kits are well under way and will be made available as soon as I can find enough hours in the day to complete them! Right now you can purchase a kit by calling our office at 709-221-5511 to pay by e-transfer or credit card. Kits are $50 each and you can make as many Releases as you need from one kit.

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Woman uses power of attorney to take $78,000 from 97-year-old with dementia

Post by Webscout » Sat Mar 07, 2020 9:56 am

Friday, March 6, 2020
Woman uses power of attorney to take $78,000 from 97-year-old with dementia
Lynne Butler, BA LLB

In Ontario, a woman named Theresa Gardiner was charged with theft when it was discovered that she had taken $78,000 from a 97-year-old woman named Christine Fisher. Gardiner had Power of Attorney over Fisher's finances. She admitted to taking the funds but said that Fisher had wanted her to have the money to help with a financial crunch.

A friend of Mrs. Fisher tried to intervene and discovered that in place of a bank card and credit card, Mrs. Fisher had notes on small pieces of paper saying that "Gardiner has my cards and won't give them back" and other similar messages. Other scraps like this were posted all over Mrs Fisher's residence in the long-term care facility where she lives. Mrs. Fisher has dementia, which is why an Enduring Power of Attorney was in effect in the first place. You can read the story in more detail on

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www.cbc.ca
by clicking here.

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https://www.cbc.ca/news/business/power-of-attorney-seniors-elder-abuse-senior-financial-crime-1.5476820
The stories told by the two sides are very different versions of what might have happened. Mrs. Gardiner says that the money was given to her voluntarily. Fisher's friend says that it was not, and that Mrs. Gardiner was taking advantage. Cases like these are so very tough to figure out because the purported victim has dementia. This involves confusion, disorientation, and difficulty with memory. I've acted for elderly people in the middle of these cases and the endless questions about the money can be unbelievably distressing for them.

I know that many people are leaping to the conclusion that Mrs. Gardiner has been taking advantage and that she should be prosecuted. To be honest, I lean that way myself. I hate seeing people taking advantage of trusting seniors and I don't mind seeing them taken to jail. We all know by now that someone acting under a Power of Attorney cannot take money from the individual they are safeguarding unless that individual specifically says so. But I have spent enough time with clients with dementia and their families to know that it isn't that simple. Many people with dementia have lucid times in which they can reason and make decisions. Perhaps Mrs. Fisher gave the funds during one of those times and then forgot about it. I also know that dementia can sometimes cause an individual to turn against someone they loved and trusted prior to dementia setting in.

In my view, it's impossible to determine whether Mrs. Fisher wanted Mrs. Gardiner to have these funds (at least on the facts reported so far). It boils down to the fact that Mrs. Gardiner should not have accepted any funds no matter how lucid Mrs. Fisher might have been at a specific point. She must have known how it would look. She must have known that Mrs. Fisher would forget and then become upset when she realized her money was gone. The optics of the situation put Mrs. Gardiner in a very poor light, to put it mildly.

I might add that a follow-up story about Mrs. Gardiner indicates that she owns a home in Toronto and a lakefront property worth as much as $1,000,000, so she isn't exactly on the skids. You can see the follow-up story here. Again, this evidence, on the face of it, seems to work against Mrs. Gardiner, though it doesn't say much about her cash flow or whether she tried to sell the property to resolve her own financial problems.

So what happened to Mrs. Gardiner out of all this? She agreed to repay $20,000 (the amount of a cheque she wrote to herself from Mrs. Fisher's account) without admitting any liability. The crown then dropped the charges against her, believing that it would be nearly impossible to secure a conviction against her.

This is an extremely frustrating case. It's so difficult to advance elder financial abuse cases through the criminal courts because of the challenge I mentioned in this post - victims who cannot give reliable testimony.

As a concluding remark, the Enduring Power of Attorney was a form that Mrs. Gardiner downloaded from the internet and got Mrs. Fisher to sign. Nobody asked a lawyer how to protect Mrs. Gardiner. Yes, there is plenty we can do to strengthen these documents and involve a second set of eyes on a senior's accounts. Just don't sign legal documents without a lawyer's advice, or you could be the next Mrs. Fisher.

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https://www.cbc.ca/news/business/power-of-attorney-seniors-elder-abuse-senior-financial-crime-1.5476820

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CDN:Hidden bank fees are a breach of trust

Post by Webscout » Mon Mar 09, 2020 9:25 am

CDN:Hidden bank fees are a breach of trust
Lynne Butler, BA LLB

A post on the blog All About Estates recently caught my eye, and I think it will catch the attention of thousands of readers as well. The post, entitled Hidden Fees - A Breach of Trust talks about a brand new decision from the Ontario courts called MacDonald et al v. BMO Trust Company et al.

The lawsuit was brought as a class action suit by 200,000 owners of bank-held, registered assets such as RRSPs. The issue was about hidden fees. Why? Because according to the article, the bank paid itself over $100 million in undisclosed markup fees during the 10 year period in question. The court said that it is clear that when it comes to this type of account, the bank is a traditional trustee and and there is no question that traditional trust law applies.

Those of you who have been reading this blog for a while know that trustees are not allowed to profit from being a trustee except as expressly allowed by the trust, by the beneficiaries, or the court. The problem with the bank assets are that the fees are blended and confusing and, as the court said, they were not specifically explained to the customers. Interestingly, the court said that a customer who did their own research and was persistent in asking questions could probably have found out what all the fees were, but the bank was obligated to disclose it, not make people search for it.

The bank's own fee agreement that they give customers to sign specifically says that every fee will be disclosed. They just didn't do it properly and the court said this is a breach of the bank's fiduciary duty to its customers.

In this particular lawsuit, the asset-owners asked for an accounting of the fees. The court agreed to order that accounting. There is now going to be a reference (i.e. an investigation) of the fees to determine the exact amount of fees charged and how to value them. It appears there will be further court involvement before this matter is resolved. I wonder whether once the amount is determined, the court will order that account holders be reimbursed by the banks.

This is an amazing and welcome decision by the court.

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https://www.allaboutestates.ca/hidden-fees-breach-trust/

https://www.canlii.org/en/on/onsc/doc/2020/2020onsc93/2020onsc93.html

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Why do people make wills that say the opposite of what they really want?

Post by Webscout » Fri Mar 27, 2020 8:27 am

Thursday, March 26, 2020
Why do people make wills that say the opposite of what they really want?
Lynne Butler, BA LLB-Canada

Everyone has heard the word "legalese". It refers to the kind of language that is often found in legal documents such as contracts and wills. Legalese is generally thought to be impossible to read or understand by anyone but lawyers and judges. This is ironic, considering that legalese developed because lawyers were doing mental and linguistic gymnastics to try to convey a person's position or wishes with precision.

I believe in clarity and precision of language, as do pretty much all lawyers. The longer we practice law, the better we get at drafting and writing with confidence and effectiveness.

Given the amount of time and energy that go into a legal document, I have to wonder about clients who sign a document as being their wishes, then tell me about "side" deals and promises and arrangements that don't show up anywhere in the document. For example, a Mom signs a will leaving her house to her son. I review the will with her and confirm these instructions. At that point she confides in me that she really wants him to share the house with his siblings. Or that she promised her brother he could have the house for a dollar. Or she told one of the other kids they could live there for free after she died.

So why would she want to make a will that says the OPPOSITE of what she really wants?

I almost always get the same answer. "Because it's simpler", the clients tell me. No. They are wrong. That is not simpler. What is simple is making a document that says what you want, that leaves no room for guessing and does not pit your children against each other. What is simple is creating legal rights you intend to create and not leaving your children twisting in the wind with nothing legal to rely on when it all falls apart.

The fundamental error underlying the attitude that it's simpler to do it this way is that parents are too optimistic. They believe nothing will really change when they pass away. All of their children will get along. Everyone will understand and agree with the parent's wishes. Nobody will question why they have a will that leads them in the wrong direction. Everybody's memory of the side deals will be accurate and fair to everyone. For sure nobody will be greedy! There will never be a need to rely on the legal system because all will be rainbows and unicorns.

Let's be realistic. I wouldn't even have a job if people behaved that well. If things do fall apart, the children need a document that creates and defines the legal rights of the various beneficiaries.

Everyone needs a solid will. The backbone that makes it solid is that the wishes it contains are truly the wishes of the testator. In my opinion, avoiding legalese helps too.

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CDN-How your lawyer's retainer works

Post by Webscout » Mon Apr 06, 2020 11:18 am

Sunday, April 5, 2020
How your lawyer's retainer works
Lynne Butler, BA LLB

I've received two separate questions regarding retainers paid to lawyers, so I thought I'd answer them together. Most people have heard of having lawyers "on retainer". If you watch TV, you will likely have formed the impression that giving a lawyer a retainer means you have them on speed-dial and if you ever happen to need them, they'll drop everything and show up immediately to save you. Well, the reality is not nearly as exciting.

When you give a lawyer a retainer, it is for a specific matter or problem. You don't just give us money in case one day you need legal advice. That would be nice for us, to be given free money for nothing, but who would ever really do that?

Not all lawyers ask for retainers for all work. When we do ask for a retainer, it is for three reasons. One is that it makes the file easier to move quickly if we have money to pay for things like court fees, couriers, surveyors, searches, etc along the way. Rather than wait for the client to pay for each thing as we go, we use the retainer funds to pay the client's costs and keep things moving.

The second reason is that we want to be paid. Unlike a mechanic who can keep your car if you don't pay the bill, we can't ask a court to hold off on a judgment while we collect from our client. Once we do the work, it's out there.

The third reason is that clients really do not appreciate getting a big bill for a year's work and being expected to pay it all at once. Many of us would find it difficult to pay $5,000 or $10,000 all in one shot. When you pay a retainer, you can put down part of the money, the lawyer can start the work, and you can add to the retainer as funds become available.

The two questions I mentioned are below:

1. "It's going on one year & still no copy of the Will from the executor. Am I paying retainer for this time waiting? I want to be careful about paying for no results."

When you have a lawyer on retainer, you don't pay them to "wait". It's not like a taxi where the meter keeps running even if you're sitting still in traffic. The lawyer can only bill you for work that he or she does, and use the retainer funds to pay those bills. If they are not doing anything but waiting, then of course you are not paying them. On the other hand, if they are calling the probate court, doing searches, or corresponding with the executor's lawyer to try to find out something, then you'll pay for their time.

Law Society rules require lawyers to produce invoices for the clients and to ensure those invoices are sent out before retainer funds are used to pay the bill. Even so, you are entitled to call or email the lawyer's office at any time to ask for an accounting of your retainer funds.

2. "I have paid a retainer to a lawyer. But what's in future for the lawyer? Can he pay the rent on office? Will he go bankrupt?"

I read question #2 in the context of the COVID-19 pandemic. I can see clients worrying about lawyers going out of business just as you'd worry about lots of other businesses right now.

I can tell you that in my province, all the lawyers in private practice are still working and are still busy. Everyone has modified their ways of doing things to allow for social distancing, but we're all managing.

It sounds as if you're worried that the lawyer will go out of business and you'll lose your retainer. However, the money you give as a retainer does not go into the lawyer's bank account to be used for his general expenses. It goes into a trust account and can only be used on your behalf or to pay the bills he charges to you. We have very strict rules about use of trust funds.

It's possible that the lawyer might have financial troubles and decide to keep your money inappropriately. It does happen from time to time. But that would only happen if the lawyer never plans to practice law again because he would be disbarred. Like I said it happens, but it surely doesn't happen very often.

I hope these comments help everyone understand a little more clearly how lawyer's trust accounts work.
-------------------------
Editor-I am not sure but I would think this is probably similar to the US? Anyone care to comment?

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Nobody notified me that my Grandpa was ill or that he made a new will. Is that okay?

Post by Webscout » Sun Apr 12, 2020 8:29 am

Saturday, April 11, 2020

Nobody notified me that my Grandpa was ill or that he made a new will. Is that okay?
Posted by L Butler-Lawyer East Coast Canada

When someone passes away unexpectedly, it can feel overwhelming to try to find the seemingly endless bits of information you need to figure out what to do next. This is not made any easier by the fact that we as individuals have expectations and wishes that don't necessarily accord with the law. Below is a note I received from a reader, but it contains a few separate questions that I hear pretty often.

"I am my grandfather's only living relative. He named me as his executor 16 years ago upon my gram's death. Last week a lawyer notified me that Grandpa passed away. I wasn't even informed he was sick or dying. Suddenly I have a woman claiming to be executor. Are there not time frames to contact family? Can someone have a second will done without the family being notified? I don't even know where his body is to make appropriate arrangements to put him with my gram."

As I mentioned, the law doesn't necessarily reflect what we expect it to say.

For example, you mention that you expect to make arrangements to put your grandfather's remains with your grandmother's. You expect this because you are the only living relative. The law, though, gives the right to make decisions about disposition of remains to the executor. So this woman who has been named as executor has the right to decide where and how your grandfather's body is dealt with. It would be nice if she would ask your wishes and even nicer if she followed them, but the law does not compel her to do so. Sometimes this leads to a truly painful experience and I hope it can be resolved.

Another question you have is about "time frames for contacting family". Generally speaking, there are no formal systems for notifying family members about things like a person becoming sick. Who would call you if your grandfather were ill? There is nobody required by law to do so. Hospitals don't notify people unless those people are named under a healthcare directive which needs to be used. Certainly it would be thoughtful of a friend to call or email, but that's a social convention, not a law.

Some provinces have rules in place that people who are named as beneficiaries must be notified of their rights under the will within certain time frames. This is an executor's responsibility but does not exist in all provinces. This notice is only for beneficiaries, since not all beneficiaries are family members and not all family members are beneficiaries.

You also asked whether someone can make a new will without the family being notified. Certainly they can. It's nobody else's business when a person wants to make or change a will. I am guessing that you might have asked this question because you suspect the will was done in a way that would raise questions such as whether the executor pressured your grandfather to make a will in her favour. That could be the case, but you cannot assume so based only on the fact that you weren't notified. If this is in fact your concern, you should certainly satisfy your worries by examining the will and by looking into the woman in question.

I can tell this situation is upsetting and painful for you. I realize my note doesn't necessarily give you the answers you want to hear, but I hope it helps to have some information anyway.

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CDN-What if the bank won't let the executor pay the funeral bill

Post by Webscout » Thu Apr 16, 2020 9:58 am

Wednesday, April 15, 2020
What if the bank won't let the executor pay the funeral bill because they want the funds for the mortgage?
Lynne Butler, BA LLB East Coast Canada

A lot of executors run into unexpected problems when they try to deal with the deceased's assets held in a bank. In particular, where the deceased had a mortgage, the bank will often decide that it wants the deceased's bank account to be used to pay the mortgage, even if there are other debts to be paid first. A reader asked me about this, and since it's a question I seem to answer frequently in my daily practice, I thought I'd answer it here. The question and my comments are below:

"A relative has died and left a real mess for his executor and sole beneficiary to sort out. The main issue is that although there are sufficient funds in his account to pay for the funeral the bank is claiming the whole amount to offset against his mortgage and refuse to allow the funeral to be paid out of the frozen account. Can they do this? My understanding is that funeral expenses are a first charge on the account any other debt such as a mortgage, which I would expect to be secured against the property itself, are second or lower charges. How do we get them to accept the funeral home's bill?"

I've seen this happen so often now that I pretty much expect all banks to do this. I used to recommend to executors that they set up executor's estate accounts in the bank where the deceased had accounts, but I don't anymore. I now recommend that they remove the deceased's assets out of the hands of the banks as soon as possible because of this very thing you're talking about. Banks feel that because they have the money in their branch, they can control what they do with it. The law does not support that.

You are correct that the funeral bill ranks above the mortgage in terms of repayment. So does Canada Revenue Agency. What you are seeing here is the clash between the law (that funeral and tax are paid first) and the bank's own corporate policy (that the bank gets paid and to hell with everyone else, including the executor who is left holding the bag). However, it is NOT up to the bank to decide which bills are paid from estate assets.

You are going to have to stand your ground and insist on release of the full account to you. Take the issue up layer after layer of management if you have to. Maybe even hire a lawyer to back you up. Maybe call the bank ombudsman.

The last time I had to deal with this, I wrote a letter to the manager of the bank, reminded him of the law, and told him if the assets of the deceased were not turned over to the executor in full within 24 hours, I would be serving a Statement of Claim on them the next day. I reminded him that not only would my lawsuit require them to turn over the assets, I would ask the court to award legal costs against the bank for doing what is clearly wrong. It worked, as well it should since I was on the right side of the law.

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Gust v. Langan: The napkin will

Post by Webscout » Tue Apr 21, 2020 8:45 am

Tuesday, April 21, 2020
Gust v. Langan: The napkin will
Lynne Butler, BA LLB-Canada

If you wrote something on a napkin while you were at a fast-food restaurant, could that napkin be your will? This is something the court in Saskatchewan recently had to consider. The following post was written for this blog by James Steele, an estate litigation lawyer in Saskatoon, Saskatchewan. Read on to see James' summary of what the court thought about the napkin will:

This article offers an overview of an interesting recent Saskatchewan estate litigation decision, in Gust v Langan, 2020 SKQB 42.

A handwritten document had been written on a McDonald’s napkin. The issue for the court was whether the napkin could be legally accepted as a valid holograph will. A holograph will is a will that is entirely written, dated, and signed in the handwriting of the testator (i.e the person making the will).

Facts:
Some time before he died, one Philip Langan had written in pen on a very thin, brown-coloured, paper restaurant napkin. The text he wrote read as follows:
Ron Langan
Dennis Langan
Sharon Langan
Landry Langan
Philip W. Langan
Maryann Langan (Gust)
Dallas Langan
Split my property evenly,
“Dad Philip Langan”

Did this napkin meet the requirements of a valid will? This particular holograph document was drawn informally. As such, the issue before the court was whether Mr. Langan intended to create a will when he wrote on this napkin in the restaurant.

The challenger to the probate, Maryann, was skeptical that the napkin was written by her father. However, she offered no handwriting samples to disprove it was his writing. Maryann also stated that her father told her in November 2015 that he would not leave a will because “he wanted us kids to fight like he had to.”

Other evidence, however, told a different story. Apparently, Mr. Langan had created the document while at McDonald’s when he thought he was having a heart attack.

Sharon Langan and her brother, Ronald Langan, stated that they had never heard their father say that he had chosen not to create a will so that the children would have to fight over the estate. Indeed, Sharon stated that her father would often mention, “Sharon has my will, that napkin.”

Sharon stated that she was not present at the McDonald’s restaurant when her father “started writing on the napkin,” but she observed him signing his name after, when he gave the document to her and said, “This is my will[.] I want you to keep this in case something happens.” Sharon stated that the document was in her possession until she gave it to her brother to deliver to a lawyer, Mr. Stephaniuk.

Finally, another son, Philip, stated that he was at the McDonald’s restaurant, not when his father created the document, but when his father “gave…the handwritten document to…Sharon Langan.” Philip states that his father told Sharon, “This is my will and I want you to keep this in case something happens to me.”

Conclusion:
Ultimately, the court found sufficient evidence to show that Mr. Langan had the requisite testamentary intention to create a will, and that the document showed Mr. Langan’s final wishes.

This napkin will episode is but the latest in the line of various Saskatchewan holographic wills. In 1948, farmer Cecil Harris scratched a note on the fender of a tractor as he lay dying, being pinned underneath. Cecil wrote, “In case I die in this mess I leave all to the wife. Cecil Geo Harris.” This fender was probated, and found to be a valid will. The fender may now be seen at the University of Saskatchewan College of Law.

It remains to be seen what will be the next holographic device to test the limits of what is a will. One thing is clear: as interesting as some holographic cases can be, obtaining a professional lawyer-drawn will remains the safest and generally cheapest way to ensure your final wishes are followed.

James Steele is a lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan (j.steele@rslaw.c*m). He practises extensively in the area of estate litigation in Saskatchewan. He can be reached at j.steele@rslaw.c*m or 1 306 933 1338. The readers are advised to consult a lawyer for specific advice.

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CDN-Why is it so hard to get the police to charge a POA who steals money?

Post by Webscout » Fri May 01, 2020 11:43 am

Thursday, April 30, 2020
Why is it so hard to get the police to charge a POA who steals money?
Lynne Butler, BA LLB-East Coast Canada

In this post, I want to answer a comment that a reader made on this blog. It was some time ago, but I saved the comment because it addresses a concern that I hear frequently from blog readers as well as from clients in my practice. It was asked in the context of the use of Enduring Powers of Attorney, but the question could just as easily have been asked about an executor or administrator. Here is the question, followed by my comments:

"What I truly don't understand is how if stole $80,000 cash from someone's home I would be charged with theft yet these administrators can steal large sums of money and it is almost impossible to have charges laid."

This is frustrating, I know, but there is a reason for the reluctance of the police to lay charges. If you came into my home and took my money against my wishes, the case is clear. It's not your cash and you have no right of any kind to touch it. I'm standing there to tell the police that I didn't want you to take it.

With powers of attorney, there is an extra factor that makes the picture quite different. Those people have legal, valid documents that say they can take the money. So the crossing of the line from "mine" to "stolen" is not so clear. If I've signed a document saying that I give you permission to take money out of my account for certain purposes, now we're into more complex questions. What is your purpose in taking it? Did I give you permission for that purpose? Is the POA one of those home-made papers that don't actually make anything clear? What are my true intentions? How do you determine my true intentions if I have dementia? Are you telling the truth when you say that I gave you that money as a thank-you for all your help? What if you've used my funds before and all went well?

As you can see, it's no longer a matter of "he took what is mine". Now the police have to do something they are not trained for or even allowed to do - determine the meaning of legal documents and how they apply. Only judges have the authority to do that. And in our legal system, you can't arrest people when there isn't evidence of a crime. Determining the parameters of a legal document is a matter for the civil courts, not the criminal justice system.

So what is a person who believes theft has occurred supposed to do?

There is a specific section in Canada's Criminal Code called "theft by Power of Attorney". It is a recognized crime and it can be, and is, prosecuted when the facts are all there. It might just be that you have to do a bit more work to bring those charges about than you might otherwise expect to do.

I find that in cities with elder abuse teams on the police force, you are most likely to get the response you want. In my experience, those officers in particular are familiar with issues that complicate the facts, such as dementia, and the documents themselves. They devote themselves to combating elder abuse of all kinds, including financial abuse. They'll investigate each claim thoroughly by looking at the paperwork, getting bank statements, interviewing people, etc.

Whether or not you have access to an elder abuse team, your complaint that there has been criminal activity is more likely to be acted upon if you are able to produce clear evidence. Simply saying "he stole it, I know it" is not going to cut it. An example I saw recently was that the POA purchased a riding lawn mower with the funds belonging to the person he was supposedly looking after. The older person had no lawn. She had lived in a long-term care facility for some time and wouldn't have been physically able to use the mower even if she wanted to. So why was he buying a riding mower using her money when his job is to only use her money for her benefit?

Also remember that if you don't have the evidence to have criminal charges laid, you can still draw on the civil court system. The problem there, of course, is money. Lawsuits are expensive. Keep in mind though that very, very few matters get all the way to a trial. The vast majority are resolved between the parties (usually with help from their lawyers) along the way. Recently I dealt with a case where a POA attempted to change the designation on a life insurance policy. She honestly didn't know she wasn't allowed to do that until someone in the family stepped in and stopped her using the civil law system.

As an aside, if you want to get a preview of what a lawsuit would really be like, maybe take a look at my book called Contesting a Will Without a Lawyer, available from the publisher in paperback or as an e-book, or on Amazon. It has tons of specific information about filing documents, court fees, doing legal research, when and how to make a settlement offer, demand letters, representing yourself in court, etc.

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Don't assume you know the answer to a legal dilemma

Post by Webscout » Fri May 08, 2020 8:11 am

Thursday, May 7, 2020
Don't assume you know the answer to a legal dilemma
Lynne Butler, BA LLB

Often, my office receives calls from members of the public who ask the price of Enduring Powers of Attorney, wills, guardianship or other services. We certainly welcome those calls, but in most cases the callers don't reveal why they want the item they are requesting. My staff, as the recipients of the calls, have to assume that the customers know what they need.

Yesterday an assistant in my office took a call from a potential customer who had asked the price of getting an Enduring Power of Attorney prepared for a family member. Because she went on to ask about the logistics of having the document signed in extremely challenging circumstances, the call was put through to me. I asked the caller why she wanted the Enduring Power of Attorney for her family member and she said she had been told by personnel at his care facility that it was needed. I then asked her to describe for me why it was needed - what assets the family member owns, what financial arrangements needed to be made, etc.

As it turns out, the family member has nothing but a CPP pension that needs to be received and then used to pay bills.

An Enduring Power of Attorney is not needed in this case. All the caller needed was to fill in forms for CPP and arrange for her to be registered with CPP as her family member's limited trustee. If we had simply quoted her a price, she would have hired us or some other lawyer to prepare an Enduring Power of Attorney and attempt to jump a dozen or more extraordinary hurdles to get it signed. And that is assuming we were able to establish mental capacity for a person whose illness renders him without speech and who can only sign with an X.

In any event, I found the form online while speaking with the caller and put it in the mail to her. It cost her nothing. It was a simple solution already available.

This is why I have many times on this blog encouraged readers to talk to their lawyers about what they are trying to accomplish - the goals, needs, and challenges. Rather than go in assuming you know the answer to a legal question and assuming you know the available solutions already, be prepared to hear other possible ways of dealing with things. Tell the whole story. It just might save you a lot of money and a lot of frustration.

There is another take-away for readers here too. That is, don't accept legal advice from people who are not lawyers.

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What Canadian lawyers are charging their clients in 2020

Post by Webscout » Thu May 14, 2020 8:04 am

Wednesday, May 13, 2020
What Canadian lawyers are charging their clients in 2020
Lynne Butler, BA LLB

Each year, Canadian Lawyer Magazine does a survey of its readers to find out what lawyers across the country are charging, on average, for certain work. I like to pass along some of the results of the survey (those that are relevant to my practice areas) to the readers of this blog. The 2020 survey results are in, and here are some excerpts from it:

The cost of a civil trial (which includes preparation for the trial and matters leading up to it), where the trial is 7 days long is, on average, $34,999 in western Canada, $32,728 in eastern Canada, and $55,000 in Ontario. That leads us to a national average of $48,431 for a 7-day trial. That is for one lawyer, so presumably each party to the lawsuit is paying more or less the same amount for his or her own counsel.

By way of contrast, the cost for a mediation of up to 3 days is, on average, $13,391. Normally, the cost of mediation is shared by all parties to the mediation so the cost per person would depend on how many parties there are. So, when I remark on this blog that mediation is cheaper than litigation, there's your proof.

The cost of having having a will prepared was included in the survey. The cost of having a simple will done for a single person is $493 in western Canada, $717 in eastern Canada, and $506 in Ontario. The cost of having a complex will done in western Canada is $963 for an individual and $1156 for a couple. In eastern Canada, the cost of a complex will is $1228 for a single person and $1038 for a couple (that seems odd). The cost of a complex will in Ontario is $996 for a single person and $1211 for a couple. This does not include any other documents such as Enduring Powers of Attorney or Healthcare Directives.

Legal fees to obtain probate are, on average, $3225 in western Canada, $2513 in eastern Canada, and $2881 in Ontario. That of course would not include any contested matters.

There are differences, even within geographic areas, between various firms depending on the number of lawyers in the firm. Small firms (1 to 4 lawyers) are in almost every category less expensive than lawyers in larger firms. Sometimes the difference is small but in other cases it is quite a bit bigger. My own analysis of the numbers indicates that the differences are small when there is a set task such as will preparation, incorporation of a company, etc, but is larger when litigation is involved.

The final set of statistics that I thought would be of interest to readers is the average hourly rate being charged by lawyers in Canada. It varies depending on the amount of experience each lawyer has gained, as well as geographical area. Here are the stats from the survey:

Average hourly rate for lawyer with 1 year or less experience:
National: $332
West: $215
East: $374
Ontario: $446

Average hourly rate for lawyer with 2 to 5 years experience:
National: $427
West: $281
East: $457
Ontario: $573

Average hourly rate for lawyer with 6 to 10 years experience:
National: $580
West: $362
East: $647
Ontario: $789

Average hourly rate for lawyer with 11 to 20 years experience:
National: $681
West: $455
East: $641
Ontario: $909

Average hourly rate for lawyer with 20+ years of experience:
National: $1616
West: $475
East: $648
Ontario: $2939 (I know, right?)

This survey is published so that we lawyers know what our competitors are charging and so that we can keep an eye on pricing trends. For example, the cost of trials has gone down in the last few years. I'm publishing these results here even though many of my readers are not lawyers because I hope that having this information will help inform people who are shopping for legal services.

What I personally take from this survey is that I am charging about half of the average hourly rate for my area and level of experience, and less than a quarter of the national average for my experience level. However, I believe that no matter what this survey says, each business owner - whether lawyer or not - is sensitive to the market in his or her own town or city and will adjust accordingly. I don't plan to raise my hourly rate in the near future.

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