The LEGAL/JUSTICE POST

Talk about anything.

Moderator: Global Moderator

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

CDN:What happens on death when you've been separated from your spouse for eons, but not divorced?

Post by Webscout » Fri Jul 13, 2018 8:19 am

Thursday, July 12, 2018
What happens on death when you've been separated from your spouse for eons, but not divorced?
Lynne Butler

Many of you know people who have been separated from a spouse for years but who have never bothered to go through with the divorce. Sometimes I meet clients who tell me that they have been separated for 25 or 30 years or more without ever finalizing the divorce. When I ask why they have not simply signed the paperwork, I am usually told that "it makes no difference".

Perhaps it does not make a difference to your daily life right now. But does it make a difference when you pass away or if you develop an age-related dementia? Perhaps.

One way in which you or your estate might be affected by this lack of action is the existence of old documents that should have been updated years ago but never were. Let's face it, if you can't even get around to finalizing your divorce, you probably haven't bothered updating your will, Enduring Power of Attorney, or Healthcare Directive either. Are you okay with the ex you left 25 years ago inheriting a part of your estate? Does it suit you to have your ex making end-of-life or medical decisions for you? Do you know how the claims of a still-married spouse might impact a new partner in your life? If not, get going and update your documents.

Another reason that I've heard for not concluding a divorce is that it's "too much trouble". I mean, who wants to go through all of that fuss about dividing pensions and changing the title on the house and all that boring stuff? It will work itself out, right? Wrong. Those issues often continue to exist, but you've left the burden of figuring out your responsibilities on the shoulders of others. A divorce settlement would have covered things such as who would get a share of your company pension, who would keep the house, and who would maintain life insurance policies for the other.

Let's imagine that you meet someone and the two of you decide to become a couple. He or she is still married even though they've been separated for years. It's no big deal so you move in, assuming that one day it will all get figured out. The years go by and you don't think a lot about the silly details such as whose name is on what. Then one day your partner passes away and suddenly you realize that you have been left out in the cold. Your partner's ex was never taken off the title to the house, even though you and your partner lived there and paid for everything. Now you've been given two weeks to move out so that the ex can take the house and sell it. You also find out that you won't be getting anything from your partner's pension or life insurance because all of that is in the ex's name too!

A lot of people in that position will put up a legal fight, if they can afford to do so, and so begins another lengthy, expensive legal battle that could have been prevented.

Not every situation is as dire as the example I've given here. Some provinces have legislation that allows a common-law spouse to inherit even when living with someone who is legally married to another person. Not all do, though. And even if common-law status will cure some of the issues I've raised in my example, it won't overcome things such as a title held in the name of a third party.

If you have been separated for years and have no intention of reconciling with your ex, just get the paperwork done so that others around you won't have to tidy up your affairs for you after you pass away.

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

CDN-How much money do you receive if a loved one is killed in an accident?

Post by Webscout » Tue Jul 24, 2018 9:19 am

Monday, July 23, 2018
How much money do you receive if a loved one is killed in an accident?
Lynne Butler

This is a topic I don't think I've covered before on this blog, mostly because it involves a type of litigation that I typically send out to other lawyers. However, the question of how much money (we lawyers refer to the amount as "quantum") is involved is a relevant question to family members left behind.

Loved ones left behind might be struggling financially due to the loss of the deceased's income. A small business might be in danger of folding without the deceased there to do the work. There are many such situations in which the family of a person who died a "wrongful death" might consider taking legal action to recover some money. The potential amount of the lawsuit is an important factor for the simple reason that in any legal action you have to weigh the potential benefit against the potential cost.

Recently I read an article in w*w.advocatedaily.com in which an injury lawyer laid out the three sources of money that become available when someone is killed in an accident. See below to read the article ("Wrongful death Part 2"), which interviews Toronto lawyer Alison Burrison, The article is specific to Ontario so some of the material is going to be different in other provinces, but this should give you a good idea of where to start.

Code: Select all

https://www.advocatedaily.com/alison-burrison-wrongful-death-claims-part-2-making-a-claim-1.html

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

Hooray for Florida !

Post by Webscout » Wed Aug 01, 2018 8:17 am

Hooray for Florida !

Only 49 more states to go!

I-95 and I-75 will be jammed for the next month or so with druggies and deadbeats heading North out of Florida, because this is the first state in the union to require drug testing to receive welfare! Hooray for Florida ! In signing the new law, Republican Gov. Rick Scott said, "If Floridians want welfare, they better make sure they are drug-free."

Applicants must pay for the drug test, but are reimbursed if they test drug-free. Applicants who test positive for illicit substances, won't be eligible for the funds for a year, or until they undergo treatment. Those who fail a second time will be banned from receiving funds for three years! Naturally, a few people are crying this is unconstitutional.

How is this unconstitutional? It's a legal requirement that every person applying for a job has to pass drug tests in order to get the job, why not those who receive welfare?

Forward this if you agree! Let's get welfare back to the ones who need it, not to those who won't get a job.
---- No Borders, No Language, No Culture = No County

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

CDN-Why is abuse of the estate legal system allowed to continue?

Post by Webscout » Wed Aug 15, 2018 9:02 am

Wednesday, August 15, 2018
Why is abuse of the estate legal system allowed to continue?
Lynne Butler-Lawyer East Coast Canada

I received an email recently from a reader who expressed sadness and frustration over the administration of her parents' estates in the hands of her siblings. This reader touched on a topic that is of great concern to me and to many others: the abuse of the estate system. Read on to see the reader's note and my comments.

"Two of my sisters approached my 92 year old mother to become Executors after my father passed away and upon my mother's passing have since smiled and waved passed every so called "check point" in the legal estate system. I've watched incredulously as they've come to the end of two years, no release signed by beneficiaries, no passing of accounts, keeping everyone at arms length..and having done whatever they want regardless of our requests. I read over and over how commonplace this is and yet, the rules and regulations have not tightened. Why is this allowed to continue?

In our case, it's out and out craziness, and, not at all the intent of our hard working, hard sacrificing, immigrant parents...not, at all. This has done irreparable damage to the next generation."

In theory, it's not allowed to continue. All of the things you've mentioned are covered by our existing laws. We have a Trustee Act in every province and territory that regulates how executors are allowed to behave. We have Rules of Court that describe how estate processes work. We have courts that hold people to their roles. We have criminal laws that punish people who engage in fraud and theft.

The problem is not so much in the law as it is in the enforcement of it. It's a complex issue. When the beneficiary of an estate sees a problem with an estate, he or she has to proceed through the civil court system to get a judge to enforce the law. This requires a number of things, such as: knowledge of the system, awareness of the rights of beneficiaries, competent lawyers, affordable legal advice, informed judges, accessible courts, and the willingness of individuals to engage in legal hostilities with family members. Many of these are beyond the reach of average Canadians. The cost alone makes enforcement of rights inaccessible for many folks, even if they knew how to go about it.

You're right that financial abuse of estates is widespread. There are several other factors that have led to this perfect storm of rogue executors and beneficiaries. One of the main reasons for the ugly state of current affairs is that estate laws were for the most part created almost two centuries ago. Society was a lot different in the 1800s when estate laws went through their watershed changes that resulted in today's principles and concepts.

Back then, an honour system actually worked most of the time. Today, not so much. Today towns and cities are bigger, allowing less interaction between individuals and their neighbours. This means that bankers, lawyers, police, doctors, and clergy don't necessarily know what's going on with seniors. They don't know which of the kids has been taking care of Mom and who has been estranged for the past 10 years. They don't know who was arrested or declared bankruptcy. Privacy laws can protect individuals but they can also isolate them,

There has also been a major shift towards keeping estate matters within the family. You would think that would protect people, but the opposite is true. At one time, people often chose their executors from among prominent citizens such as businessmen, lawyers, clergy, police commissioners, and local politicians such as mayors and MPs. They did this partly to gain an executor with skills such as literacy and fluency with money. It was also party because the executor would have a public reputation to protect and would therefore behave honestly with regard to the estate.

These days people almost always choose their own children, however poorly suited to the job, and sometimes those children don't feel they have to answer to anyone. There is a vast sense of entitlement awash in our society today and it is most evident when it comes to estates. Some people's kids can rationalize all sorts of theft from parents and pressure on parents to hand over valuable assets such as homes and bank accounts. Nobody from outside the family sees what is going on so it leaves it up to siblings to start lawsuits against each other if they want to stop the abuse.

I strongly believe that in our country, we need a public office that oversees estate administration. We need a registry for executors who should have to file certain documents within specified limits. All parties to the estate would know that documents are going to be examined by this office. Executors and beneficiaries alike should be aware that failure to adhere to the rules may lead to them being removed from the estate altogether. There should be a roster of knowledgeable lawyers and mediators available and an expedited court process for disputes.

I don't expect to see such an office in my lifetime but after 30 years in this business I honestly believe that executors and beneficiaries need help. The system is outdated and inaccessible. Families are being destroyed, estates are being plundered, and resources are being wasted.

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

Legal Issues and Law

Post by Webscout » Sat Aug 18, 2018 6:20 am

Legal Issues and Law
As an attorney, have you ever had a case that tested your sanity?
J. Brian Watkins
J. Brian Watkins, former Litigator (1993-2011)
Answered 9h ago
Josh, I don’t want to seem flippant—really.

They all did.

Litigation in the modern sense of the word is insane.

It has gotten so bad in many jurisdictions—mine was California—that justice cannot be had. California has underfunded its courts for so long that a civil case simply doesn’t have a chance.

In California most important agreements come with an arbitration clause. Arbitration is “arbitrary”—you are agreeing to hire a private judge. But the private judge is so expensive that you just take whatever sloppy settlement you can get.

I was so disgusted by the rampant abuse and the inability of the system to do anything about it that I jumped off the ship; I couldn’t do it any longer.

In my opinion, litigation only begins to be an option if you can afford $50,000 in legal fees at a minimum. If you can—great, buy your ticket and get ready to wait for a courtroom. It will take years to get to trial and if you are a business owner I guarantee that your better option would be to take the loss and move on.

If you have an insurance policy and suffer a loss, the insurance company will deny the claim. They will offer you a lousy and incomplete settlement every single time.

If you reject the settlement, be prepared to endure years of litigation before the insurance company settles fairly. They will if you fight. But that is hardly a consolation as you spend many tens of thousands of dollars.

Here is my standard intake discussion:

You’ve been bitten by a rattlesnake. Your choice is to chase that snake deep into the woods, deep into that rattlesnake’s home territory where it makes the rules or you can get yourself to a hospital and treat the bite. Don’t be the foolish hiker that chases the snake down and kills it only to then realize that you are in the middle of the woods with a dead cell phone and need to get to a hospital.

OK—that’s figurative of course.

Yes, there were cases I took in which the guilty were punished and justice carried the day. I’m proud of that work. But most victories were Pyrrhic. Often the party against whom a judgment entered simply transferred assets away. Sure, that’s illegal and wrong, but it takes years of work to collect even simple judgments.

You are trying to collect money from someone who is spending as much as they need to to avoid giving it to you. And, you are trying to use an antiquated system of collection that relies on disinterested sheriff’s personnel and clerks who are ready to reject your efforts if you so much as forget to dot your “i” correctly. Frustration? That’s the kindest term I can think of.

When you win a civil case you are presented with a judgment—not money. A judgment is merely a fishing license authorizing you to try and collect.

Also, bear in mind that you will have at least two full years of appeals if the other side files even a frivolous appeal. You could conceivably have a decade long trip up and down from the trial court to the Court of Appeal—particularly if your case involves novel questions, which they all do if a decent lawyer is involved.

If you do it correctly and present a real threat—they will just file for bankruptcy protection.

Honestly, if you have to litigate, you’ve already lost.

The best and highest service an attorney can render a client is to keep them out of court.

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

Do I tell my lawyer that I am guilty of a charge and then trust them to defend me as if I were innocent?

Post by Webscout » Sun Aug 19, 2018 5:35 am

Do I tell my lawyer that I am guilty of a charge and then trust them to defend me as if I were innocent?

USA-Stephen Link, Attorney-Aug 19/18

As usual, please ignore all answers not penned by actual attorneys. What impels people to answer questions they have no clue about absolutely confounds me.

Rant over.

Roughly 40% of my practice is criminal defense. When I meet with people to talk with them about their case, I usually have a long list of questions to get through.

When you meet with your attorney the first time they will guide the conversation. Those of us that have done these cases before know exactly what information we need and we don’t waste time getting to it. Circumstance rules criminal defense.

Answer our questions honestly. I can’t say that enough. No half-truths, no speculation, no rant on how the officers were a little too rough with the cuffs, just the facts. If we ask a question about a detail that seems bizarre to you, answer honestly: it’s important.

We work with what we have and if you give us garbage, you’ll get garbage. Keep this in mind: your defense counsel’s duty is to you. They will defend you to the absolute best of their ability, regardless of if you tell them you were guilty or not.

There are certain ethical restrictions about telling the truth to the court, but under no circumstances will your attorney throw you under the theoretical bus. Any attorney not willing to give one hundred percent to their clients isn’t worthy of the title.

User avatar
Webscout
Administrator
Administrator
Posts: 28365
Joined: Thu Dec 28, 2006 8:43 am

How the Elderly Lose Their Rights-The New Yorker

Post by Webscout » Sun Aug 19, 2018 3:55 pm

How the Elderly Lose Their Rights-The New Yorker

Code: Select all

[code]
https://www.newyorker.com/magazine/2017/10/09/how-the-elderly-lose-their-rights
[/code]

Post Reply