So You’ve Been Appointed an Executor. Now What?

A close friend or loved one has died and you are aware that you have been named executor in his or her Will.

What should you do next?

Step 1

Locate the Will. In many cases, the deceased will have told the executor where the Will is located but there are times where the deceased has not informed the executor of the location of the Will. Where the Will cannot be easily located, the executor will have to submit a form called an Application for Search of Wills Notice with the Wills Registry administered by the Vital Statistics Agency of British Columbia, which provided if a legal professional submitted a Wills Notice, will indicate the last known location of the Will and the name of the legal professional who prepared the Will. Sometimes, the original of the Will may not be located but a copy of the Will may be located and that is usually sufficient to carry out the last wishes of the deceased.

Step 2

Once the Will is located then it is always a good idea to review the terms of the Will with a lawyer specializing in the area of Wills and Estates, followed by a meeting with a Certified Public Accountant to understand what steps need to be taken so as to ensure the deceased and the estate remain in compliance with the Income Tax Act

Step 3

Arrange for the funeral of the deceased. In many cases, you can take the bills from the funeral home to the financial institution and the financial institution will release funds from the deceased’s account to pay the funeral bills in advance of the grant of probate.

Step 4

Cancel all credit cards and subscriptions.

Step 5

Apply for Canada Pension Plan Death Benefits as there is a strict time limit for applying for such benefits and review any other employment relation pension plans that the deceased received during his/her lifetime to determine if any death benefits are available.

Step 6

Compile a list of assets and debts in the sole name of the Deceased.

Step 7

Obtain death certificates to facilitate the transfer of assets owned by the deceased jointly with others into the name of the survivor(s). Such assets can include joint bank accounts and real estates. Also, submit the death certificate to those financial institutions where the deceased had RRSPs, RRIFs, TFSAs or life insurance policies with named beneficiaries.

Step 8

With the assistance of a Wills & Estates lawyer, apply for a grant of probate of the Will which is the legal process through which the validity of the Will is recognized by an order of the Supreme Court of British Columbia. For more information on what probate is, please see our articled called WHAT IS PROBATE?

Step 9

Once probate is granted, take the court order – grant of probate to all financial institutions where the deceased had accounts and have such accounts transferred into your name, Executor of the Estate of the “Name of the Deceased”. In the event that deceased owned real estate in British Columbia, submit the court order – grant of probate to the Land Title Survey Authority to have any parcels of real estate in the deceased’s sole name registered into your name, Executor of the Estate of the “Name of the Deceased”.

Step 10

Advertise for Creditors of the Deceased, examine all creditor’s claims, and pay all proven debts of the Deceased.

Step 11

Collect all amounts due and owing to the Deceased.

Step 12

With the assistance of a Certified Public Accountant, arrange for filing of all requisite tax returns and obtain from Canada Revenue Agency, the tax clearance certificate which confirms that all taxes of the Deceased and the Estate have been paid. Failure to obtain the tax clearance certificate prior to distributing the estate to beneficiaries could result in you being personally liable for unpaid taxes of the Deceased and the Estate.

Step 13

Prepare an accounting of monies transferred into your name in your capacity as executor and funds paid out to cover estate expenses. Prepare a further accounting of the funds remaining after payment of estate expenses to be distributed in accordance with the terms of the Will.

Step 14

After waiting a period of 180 days from the grant of probate so as to ensure no challenges to the Will by a spouse or children of the Deceased, obtain the written consent of the beneficiaries to the proposed distribution of the Deceased’s estate and a signed release from each beneficiary releasing you from any claims as the executor of the estate and once having obtained the written consents and releases from all beneficiaries, then distribute the funds.

Depending on the biographical details of the Deceased, the size of the Deceased’s estate and the nature of assets held by the Estate, the steps outlined above may be incomplete or slightly out of sequence. It is important to consult the advice of a wills and estates lawyer to determine the correct steps to take when administering an estate. If you or a loved one has been appointed an executor under the terms of a Will, consult Vancouver and Burnaby Wills, Estates, and Probates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Can a Suicide Note also Operate as a Will?

Can a written note authored by someone prior to committing suicide also serve as the person’s Last Will? This question was addressed in a recent Supreme Court decision in which the deceased’s handwritten suicide note was discovered in her vehicle after her body was found washed up on the banks of the Fraser River.

The handwritten note referred to it being a Will, asking the deceased’s wishes be respected and then directing that her contents and a specific bank account be given to her common law husband, that a brother receive her RRSP, and her other siblings “get nothing”.

S.37 of the Wills, Estates and Succession Act (“WESA”) sets out the formal requirements for the validity of a Will:

37 (1) To be valid, a will must be

(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.

S.58 of WESA empowers the court to order that a document that does not strictly conform with S.37 has the same legal effect as a Will.

58 (1) In this section, “record” includes data that

                (a) is recorded or stored electronically,
                (b) can be read by a person, and
                (c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

        (a) as the will or part of the will of the deceased person,
        (b) as a revocation, alteration or revival of a will of the deceased person, or
        (c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

When considering, pursuant to S.58 of WESA whether a document that does not confirm with S.37 of WESA is legally enforceable as a Will, the Court must be satisfied that the document is authentic and secondly that the document reflects the deceased’s deliberate and final expression as to disposal of his/her property.

In the case at hand, the Court readily found that the note was authentic as it was in the handwriting of the Deceased and then proceeded to consider whether the note represented the fixed and final intention of the deceased as to the disposal of the property upon death. The Court found that the note did represent the fixed and final intention of the deceased for the following reasons:

(a) The deceased refers to the note as being her Will;
(b) The deceased asks that her common law and sibling respect her wishes, leading the court to find this as a direction for them to act on his behalf;
(c) The note is in the deceased’s handwriting and signed by her, indicating her approval of the content of the note;
(d) The note was made in contemplation of death;
(e) The note was found near where the deceased’s body was found indicating an intention that the note be found;
(f) The note makes bequests of significant assets of the deceased’s estate;
(g) The note provides identifying information about the deceased’s assets; and
(h) The note’s language conveys finality.

As a result of the afore-going reasons, the Court found the note to have the legal effect as being the Will of the deceased.

While the circumstances of this case are particularly tragic, people do often leave documents that evidence what they desire to occur with their property upon death that do not conform with S.37 of WESA and in these cases, it is strongly recommended to obtain legal advice in a timely manner to ensure that the deceased’s intentions are honoured.

If you discover such a note in your loved one’s possessions after death, timely legal advice and representation can be had by contacting Vancouver/Burnaby probate, inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107

Can My Spouse Challenge My Decision to Exclude Him or Her from My Will?

In a prior post, it was discussed what may arise from a decision to exclude your children from your Will and so today’s topic will cover: What may arise from your decision to exclude your spouse?

Section 60 of the Wills Estates Succession Act (“WESA”) empowers a court to vary the terms of a Will that does not make adequate provision for the Will-maker’s spouse (including common law spouse) where such spouse makes an application to the court for a variation of the Will-maker’s Will. To quote:

S.60. Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Will-maker’s estate for the spouse or children.

The words “adequate”, “just” and “equitable” have been judicially considered by the Courts and have determined that the Will-maker’s Will must satisfy the Will-maker’s legal and moral obligations to the surviving spouse.

When determining what the Will-maker’s legal obligations are to the surviving spouse, the Courts will look to what the surviving spouse would have received if the parties had separated and then look to what the surviving spouse’s entitlement would be under the mean. BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the Will with what they would have been entitled to under the Family Law Act of British Columbia. This means in cases of long term marriages where assets were intermingled, the surviving spouse’s claim to a share of the Will-maker’s estate is stronger than those of a spouse who was married to the Will-maker for a short period of time and whose finances were separate from the Will-maker.

When determining what the Will-maker’s moral obligations are to the surviving spouse, the Court will consider whether the provisions of the Will-maker’s Will are within society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.

In light of the afore-going, you would think it would take a fairly unique set of facts for a Court to uphold a Will-maker’s decision to entirely exclude a long term spouse from being a beneficiary under the terms of the Will but the Courts have in fact done so where the parties, in a second marriage, maintained separate finances and the Will-maker make provision for the surviving spouse to live in the home for as long as the surviving spouse wanted.

Ultimately, the question of whether a Court will uphold the Will-maker’s decision to exclude or limit a spouse’s entitlement to the estate will depend on the specific facts surrounding the marriage of the parties and the provisions of the Will-maker’s Will.

If you or a loved one has been excluded from an estate of a spouse or parent, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107.

What if I Don’t Get Along with My Co-Executor?

As an experienced lawyer who has drafted countless Wills in my career, it is not uncommon for my clients to name their children as joint executors of their estate in their Will. Appointment of joint executors requires these individuals to make all decisions affecting the Estate together by consent. This requirement that all executors act unanimously may prove problematic where the children maintain a veneer of a loving relationship for the sake of their parents which inevitably breaks down upon the passing of their parents. The requirement of unanimity between joint executors can create undue delay and additional financial and legal costs where the joint executors can’t agree on matters such as selling a house or how to carry out the terms of a Will.

What can one do in a situation where one cannot act in co-operation with a co-executor?

An option is to apply to court to “pass over” or “remove” the other co-executor with whom you cannot co-operate. Section 158 of the Wills Estates Succession Act (“WESA”) empowers a court, upon application from someone who has an interest in the estate (executor or beneficiary), to remove someone who is executor and has begun the process of the administration of the estate or to bypass a named executor prior to that executor handling the estate. In order for the court to make an order removing or bypassing an executor, the Court must be convinced the executor should not continue or become the executor for any number of the following reasons:

(a) refuses to accept the office of or to act as personal representative
without renouncing the office,
(b) is incapable of managing his or her own affairs,
(c) purports to resign from the office of personal representative,
(d) being a corporation, is dissolved or is in liquidation other than
a voluntary dissolution or liquidation for the purpose of amalgamation
or reorganization
(e) has been convicted of an offence involving dishonesty
(e.1) is an undischarged bankrupt,
(f) is

(i) unable to make the decisions necessary to discharge the office of personal representative,
(ii) not responsive, or
(iii) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative, to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or

(g) a person granted power over financial affairs under the Patients Property Act.

Section 158 of WESA may be relied upon where the executor to be removed has received a gift from the deceased under suspicious circumstances and is refusing to return it to the estate or where a person named as an executor is either by intent or omission failing to take the necessary steps to deal with the estate.

Mere personality clashes between executors or between executor and beneficiary is not a sufficient reason in and of itself to have an executor removed or bypassed. Further, the Will-maker’s decision to appoint an executor is not to be lightly interfered with by the Court but rather what is in the best interests of the estate and its beneficiaries as a whole. When determining whether an executor is to be removed or bypassed, the Court will consider the following factors:

Whether the executor has endangered the estate’s property or will likely endanger the estate’s property;
Whether the executor has a history of dishonesty in business or personal dealings;
Whether the Executory has the mental capacity to execute the duties of an executor; and
Whether there is an actual or potential conflict of interest between the interest of the executor and the executor’s interest and the estate’s interest.

Contested estate matters involve relatively complicated legal issues that are further complicated by a special set of rules that govern how these contested matters are to be resolved and so it is usually not recommended to self-represent in such situations.

If you or a loved one are in need of advice regarding a contested Estate or Probate matter, consult Vancouver and Burnaby Probate lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Does an Adopted Child have Rights to their Birth Parent’s Estate?

According to section 60 of the Wills, Estates and Succession Act (WESA), if a Will-maker dies leaving a Will that does not make adequate provision for the Will-maker’s children, the Will-maker’s children may start a proceeding to vary the Will and have the Court order a more adequate, just, and equitable provision to be made out to them from the Will-maker’s estate.

What if you are an adopted child and you feel that your birth parent’s Will does not make adequate provision for you? Would you be able to vary the Will under section 60 of the WESA?

This question was considered in British Columbia Supreme Court case Boer v Mikaloff, 2017 BCSC 21. The Court ultimately decided that it would not be possible to vary the Will under section 60 of the WESA, considering section 37(1)(c) of the British Columbia Adoption Act, which states that birth parents cease to have any parental rights or obligations with respect to the adopted child. In this particular situation, the Plaintiff was not considered a child of his birth mother.

The Court also considered section 3(2)(a) of the WESA, which states that a child is not entitled to the estate of their pre-adoption parent except through the Will of that pre-adoption parent. This led the Court to the conclusion that a child is essentially in the same position as a non-family member when it comes to their entitlement in their birth parents’ Wills.

Taking both of these sections into account, the Court decided that an adopted child would not be able to take advantage of section 60 of the WESA since the child is technically no longer the child of their birth parent, and retains no rights to their birth parent’s estate other than what is specifically made out to them in their Will.

If you or a loved one are in need of advice regarding Wills and Estates or wish to have assistance in making a Will or challenge a Will, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What is Probate?

When someone dies and leaves behind a Will, the person appointed as Executor will need to go through a legal process called probate before the Will can be relied upon to transfer assets into the name of the Executor who in turn can transfer the assets to the named beneficiary.

If the Executor does not probate the Will, financial institutions and the Land Title Office will not be able to ensure that a Will is valid or challenged or revoked or superseded by a Will of a later date, meaning the Executor will not be able to have control of the deceased’s assets, whether such assets are real estate, bank accounts, or various investments excluding those with a named beneficiary such as an RRSP.

During probate, the Court will determine whether the appointed Executor is still willing or is able to serve this role. If the appointed Executor is no longer the best choice (for example, if they have lost capacity, are serving time in prison, or they do not want to take on the responsibility), then the Court will turn to the alternate Executor in the Will to carry out the Deceased’s wishes.

To officially have your Executor appointed as the administrator of your Estate, the Court will issue what’s called a “Grant of Probate”. Once your Executor is officially appointed and your Will has been accepted by the Court, the Land Title Office and Financial Institutions will be able to facilitate the transfer of the assets from the name of the Deceased to the name of the Executor who can then distribute the Deceased’s assets in accordance with the terms of the Will.

If you or a loved one is in need of advice regarding Probate, Wills, and Estates or wish to have assistance in making a Will, consult Vancouver and Burnaby wills, estates, probate lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

My ex died, do I still have to pay child support?

Sometimes, the areas of Family Law and Estate Law intersect and one relatively recent Supreme Court of British Columbia answers the question of what happens to the payor’s obligations to pay child support when the payee dies.

This situation was addressed in Carpentier v. British Columbia (Director of Family Maintenance Enforcement) 2017 BCSC 250 (“Carpentier”) where the payor was in arrears of child support at the time the payee died. The payor argued that not only did the obligation to pay child support going forward terminate upon the death of the payee but all child support arrears were cancelled as well.

The issues before the Court were two fold:

Did the payor have to continue paying child support upon the death of the payee; and
Did the payor have to pay child support arrears owing as of the payee’s date of death.

The Court determined that a child support claim is a claim personal to the payee and as such a child support claim does not continue after the death of the payee, and, correspondingly, the payor’s obligation to pay child support accruing beyond the date of death of the payee is extinguished. However, when it came to the issue of child support arrears, the Court took the position that such arrears constituted a judgment for that amount of child support that was in arrears as of the payee’s date of death.

In other words, if the parent of your child dies your ongoing obligation to pay child support ends but you will be obligated to pay to that person’s estate any amounts of child support owing as of the date of that parent’s death.

If you are being asked to pay or are seeking to claim child support in a situation where the opposing party has died, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

Is your ex-spouse asking for child support for a kid that’s not yours? You’re not sure if you’re supposed to?

Whether you are just starting a relationship with someone who already has a child or are ending a relationship with someone who has a child, it is important to know what you should, could, and would be responsible for.

You might be held responsible for child support if you are qualified as common-law partners and are qualified to be labelled as spouses. To qualify as a spouse, you must be living together with your partner in a marriage-like relationship for at least 2 years, married to your partner, or have a child with your partner. Furthermore, if you begin taking on the financial liability of your partner’s child, you might have to continue this after the relationship has ended.

Although according to Section 147(4) of the Family Law Act, a step parent does not bear the duty to provide for a child unless the step parent contributed to the support of the child for at least one year, and the court proceeding for child support is started after the within one year of the last contribution of the step-parent. Section 147(5) of the Family Law Act says that the support of a step-parent is secondary to the child’s parents and guardians. Support from a step-parent would be based on the experienced standard of living of the child as well as the length of time lived with the step-parent.

In short, you cannot be responsible for your partner’s child/ren unless you have been taking on the role of being their parent while in the relationship or contributing to the child’s financial support on a regular basis for an extended period of time. That means that you should be cautious to voluntarily take on a parent role if you are not serious about the relationship yet or do not want to be chased for child support for the child in the future! You can give gifts, treats, and provide meals for the child but do not assume the financial liability of the child if you do not want to continue this financial responsibility after the relationship.

If you or a loved one are in need of advice regarding child support for a step-child, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What Happens When You Want to Appeal an Order Made Against You in Family Court

To appeal an order made against you in family court, you will need to convince the court to stay the order so as to ensure that the status quo immediately prior to the making of the order is preserved.

When considering whether to stay the order under appeal pending the outcome of the appeal, the court will apply a three-part test as follows:

Is there a serious issue to be tried?
Will there will be irreparable harm if a stay is refused?
Does the balance of convenience favour granting a stay of the order?

1. SERIOUS QUESTION TO BE TRIED

When determining whether there is a serious issue to be tried, you will only need to convince the court that your appeal has some merit and that it is arguable not frivolous.

2. IRREPARABLE HARM

Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured”, usually because one party cannot collect damages from the other. In family law cases, irreparable harm can be found when the best interests of the children involved may be compromised. In cases involving financial issues, where one party is impecunious and the effect of the order could not be “undone” after the hearing of the appeal, then irreparable harm may be found.

3. BALANCE OF CONVENIENCE

When considering the third part of the test, the court ought to consider which of the parties would suffer greater harm from the granting or refusing of the stay pending the appeal.

The three-part test has been used in British Columbia family law cases courts to ensure the best interests of the children are protected (see Harvey v. Pocock, 2018 BCSC 2139) and to ensure the financial status quo is preserved pending an appeal (see Zhou v. Fang, 2019 BCSC 2023), and is important to keep in mind if you are looking to appeal an order made against you in a family law matter.

If you or a loved one are in need of advice regarding appealing an order, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Leaving Your Children Out of Your Will?

So we’ve talked about what happens if you die without a will—how your estate and assets will be distributed, who would administer your estate, and so on. But what happens if you do make a will, but it does not provide adequately for your children?

According to section 60 of the Wills, Estates and Succession Act (WESA), “despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

In other words, if you do not provide an adequate part of your estate to your children in your will, they can apply to change the will, and the court could step in and order that an appropriate amount be entrusted to them from your estate.

You may be wondering, what would an appropriate amount be? How does the court define “adequate provision” and how does it determine what is “just and equitable”?

There are in fact no set rules for this, but generally the court will look at societal norms to help them decide whether your will makes adequate provision for your children. These norms may vary depending upon the personal dynamics between you and your spouse/children, what ethnic group you form a part of, among other factors that are very specific to your situation and in light of contemporary community standards.