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Wills & Estate Lawyers in Surrey

How about devoting more time to planning your assets than planning a vacation? Can’t think of a trusted law firm? The lawyers at MacMillan Tucker can help you with wills and estate planning in Surrey, BC. We strive to relieve the stress of estate planning and help our clients with will preparation, property transfers, business succession planning, power of attorney, representation agreements and more. Our lawyers will ensure that your assets are handled in the way that you intend them to be! 


Go through the below articles and learn about the ways you can protect your future.

IT’S THE LAW – BY COREY J. BOW

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

REMAINS OF THE DEAD

The Greek father of two children, Christophoros, made a will in 1978. In that will, he named his son and daughter to be executors of his estate and gave his entire estate to them as beneficiaries. In the 10 years before his death in 2010, he became estranged from his children and in April 2007, he made a new will that appointed his niece, Linda, as executrix of his estate. In that new will, he gave his entire estate to Linda’s son and completely disinherited his children. Chris’s adult children contested the will on the grounds of incapacity or undue influence.


Another issue arose about what to do with his remains. Linda wanted his remains to be cremated and taken to Greece. Chris’s children, however, wanted their father to be buried according to the Greek Orthodox religion in Vancouver. They argued that since they and Chris’s second wife all supported a religious funeral, they should get that. On the other hand, Linda argued that at the time of his death, Chris was an atheist. The deceased had also written in a Representation Agreement that he wanted his executrix to decide all the issues related to funeral arrangements. The parties went to court to resolve their dispute.


What Would You Do If You Were the Judge?

There is a B.C. Act called the Cremation Interment and Funeral Services Act sets out the priority of persons allowed to dispose of the remains of the deceased person. The priority is given to the executrix. The next priority is the spouse and adult children of the deceased.  The Act also sets out several considerations, including the feelings of those related to the deceased, the rules, practice and beliefs for disposition of human remains held by the deceased, any reasonable directions given by the deceased, and whether the dispute involves family hostility and capricious change of mind. Based on all the evidence and the considerations above, the court held that the family’s preference for a religious funeral in Vancouver should prevail. The court noted that this dispute could have been resolved had the deceased made a specific reference in his will about whether or not he wished to have a religious funeral. Had he made that notation, that preference would have overridden the other considerations.


It is recommended that you set out your strong preferences for the disposition of your remains in your will to avoid your family having similar litigation after you pass away.

Corey J. Bow is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By George Gunnink

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

Nothing Can Be Said To Be Certain, Except Death and Taxes

Planner Polly did not want her estate to have to pay probate fees (tax) when she passed away. So, she did what many do to avoid these fees: she added her son, Oblivious Ollie, as a joint tenant on title to her home. At the same time, Polly did a new will, which included a statement confirming that she intended to add Ollie as an owner of her assets with the intention that those assets would belong to him upon her death. Ollie had no clue any of this was going on. A couple of years later, Ollie and his business were sued. Realizing that he was going to lose that fight, he consented to judgment in favor of CorpGiant. He first discovered that he was on title to Polly’s home when CorpGiant registered that judgment against Ollie’s interest in the home. Polly was dismayed, and very quickly changed her Will to say that she had decided to leave Ollie out of her Will as he had too many personal debts. Polly also applied to the courts to ask them to rule that she had not intended to give Ollie a beneficial interest in her home, and that therefore CorpGiant should have no judgment against it. CorpGiant objected, based on the Land Title Act, which allows persons searching the Land Title Registry to rely on the Registry to determine ownership of land. Ollie did not respond to Polly’s application.


If You Were The Judge, How Would You Decide? 

The court ruled against Polly and found that she had intended to gift the ½ interest in her home to Ollie. The case law around these transfers required the court to prefer the evidence at the time that the transfer was made, rather than Polly’s subsequent statement of intention. The judge also found that Polly’s gift to Ollie had been fully delivered to his possession, and that he had not refused the gift when he learned that it had been made to him. CorpGiant’s judgment against title also remained, consistent with upholding the certainty and reliability of our title registration system here in British Columbia. 


This case is a good warning of the potential folly of adding someone to your assets to avoid paying tax. Clearly, these transfers should only be made in limited circumstances, and only after considering all the implications of doing so.

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By George Gunnink

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

A Foster Family Forever

Foster Farley was a much-loved member of his foster family. To the end of his life on this earth, he was surrounded by and cared for by his foster siblings, with whom he had grown up since the age of 3. Farley was always treated as a full child by his foster parents, and even shared equally with his foster siblings in his foster mother’s estate when she passed. He knew nothing of his birth family, and at his date of death, his closest blood relatives were a birth aunt and niece in Switzerland, with whom he had no relationship. Farley died without a will, so his estate was destined for the Swiss relatives. However, Greg, one of Farley’s foster siblings, cracked Farley’s computer’s security after he passed and found a WORD doc. containing the following: “Get a will made out at some point. A 5 – way split for remaining brothers and sisters. Greg, Annette or Trevor as executor.” The electronic evidence showed that this document had been accessed earlier in the day of Farley’s passing and that Farley had been housebound (with the computer) in the weeks leading up to his death. Greg asked the court to “cure” this one-liner and consider it a will. He provided notice to the Swiss family members that he was doing so, but they chose not to respond.


If You Were the Judge, How Would You Decide? 

The Wills, Estates and Succession Act permits the court to do this kind of thing, and the standard to do so is set out in the case law: the proposed will had to be an authentic document created by Farley, and it had to contain Farley’s full, final and fixed intentions. With the facts before it, the court did not have much trouble deciding both of these tests in favour of Greg. So, it held that the document was Farley’s will and that the estate was to be divided equally among his foster siblings. 

 

While this case is informative and shows that the court will (in certain cases) correct what otherwise doesn’t meet the standards for a valid will, you are well-advised to prepare a proper will during your lifetime. Any variation of the facts or a litigious opposing family member could very well have resulted in a different conclusion. Additionally, Farley could have saved his foster family the significant legal expense of taking the matter to the courts!

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By George Gunnink

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern.  How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

Continuing Affection

Alex and Ashley had a 30-year spousal relationship before they separated. It seems, however, that Ashley was not done with Alex. After their separation, she chose not to change her existing will, which left everything to Alex. She met with her lawyer over a number of months following the separation, to prepare a separation agreement and discuss her estate plan. Ashley’s friend suggested that she change her will, but she specifically stated to her lawyer that she did not want to do so and that she wanted Alex to receive her estate. In fact, she changed her power of attorney and representation agreement but chose to leave her will as it was. Before the separation agreement was complete, Ashley became mentally incompetent to give instructions to finalize it. Her power of attorney stepped in to assist with the final revisions and asked that a clause disentitling Alex to Ashley’s estate be amended, as Ashley had always told her that Alex should receive her estate. At some point, after the agreement was finalized, Ashley passed away. The executor of her will was left somewhat conflicted, as the Wills, Estates and Succession Act automatically revokes a gift made by a will to the spouse of a will-maker when they cease to be spouses if the will was made while they were spouses. As it turns out, Ashley was not aware of this law.


If You Were the Judge, How Would You Decide? 

Thankfully for Alex, all was not lost. There is a further provision in the Act that allows a court to make an order that any “record” can be considered a will if the court is satisfied that the “record” contains the testamentary intentions of the deceased person. Based on the evidence before the Judge, Ashley’s old will was such a record, and it was recognized as her valid will.


This case turned out well for Alex, but only because the evidence supported Alex’s position. However, the expense of bringing this matter to the courts could have been avoided altogether by a new will done by Ashley after the separation.

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By Tyler B. Dennis   

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

The Preferred Roman Choice for Care 

Julius Caesar returned to Delta, BC in 2019, after living abroad in Italy for nearly 50 years. His return had been facilitated by his nephew, Octavian after his uncle began to suffer the worsening onset of dementia. Prior to his return, Octavian had assisted his uncle by managing Julius’ finances and his medical care in Italy. Julius executed a Power of Attorney in 2015, naming Octavian as attorney. 


Upon his return to Canada, Octavian found out that Julius had had an alleged common-law spouse in Italy, Cleopatra, who claimed to have been with him since 2017. Octavian was at this time moving his uncle into a full-time care facility as his dementia had worsened. This resulted in a conflict with Cleopatra who believed she should oversee his care. The dispute also centred around the management of Julius’ finances (which was comprised of a bank account with a balance of $400,000.00). In early 2019, Julius was declared mentally incapable of managing his affairs by his doctors, but not before making it clear he wanted Cleopatra as part of his life and revoking the Power of Attorney. 


With no authority to manage his affairs (and no Power of Attorney in effect), Octavian and Cleopatra applied to the BC Supreme Court for the appointment of a Committee of Person and Estate for Julius, each claiming they should be appointed.        


If You Were the Judge, How Would You Decide? 

The Judge ruled that when deciding as to the appointment of a Committee of Person and Estate, the Court must look at each case individually and especially take into consideration the adult’s autonomy, personal dignity, expressed wishes they made while capable, and how the adult chose to live their life. These considerations must be weighed against the reasonableness in making the appointment of the person who is applying to the Court.  Factors such as the person’s relationship to the adult, their relationship with the adult’s family if not related, whether the person is qualified to deal with financial and medical decisions, and if conflict exists between the person and the adult’s immediate family, all must be taken into consideration. 


The Judge decided that the actions of Julius before losing mental capacity, including starting the relationship with Cleopatra, revoking the Power of Attorney given to Octavian, and his public request that Cleopatra be part of his life, were strong considerations. In addition, the Judge agreed Octavian’s strong disapproval of Cleopatra and refusal to recognize her as Julius’ spouse indicate conflict would result and the potential existed for Cleopatra to be shut out of Julius’ life. 


The Judge decided to appoint Cleopatra as Committee of the Person and Estate for Julius but with conditions, specifically that Cleopatra was required to update Octavian regularly on Julius’ medical needs and treatments, that regular contact be kept between Julius and Octavian, and that Cleopatra report to the Public Guardian and Trustee yearly. 


In hindsight, had Octavian (also known as Augustus) been appointed to protect the interests of the original Julius Caesar, the history of the Roman Empire may have been a different story.     

Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By Stuart D. Robertson

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

Till Death Do Us Part 

Don and Debra lived together in unwedded bliss for almost ten years. When they started to live together, neither of them had much money, but they were able to purchase a home of their own with basically no money down. The property and mortgage had to be put into Don’s name only as Debra had some credit problems. They both took a lot of pride in their home and over the course of their ten year relationship, they both put a lot of hard work and money into the property, including renovating and making regular lump sum mortgage payments.  After about ten years, the home had tripled in value from when they had initially purchased it and the mortgage was paid off in full. 


Unfortunately, Don and Debra had a difference of opinion on whether to turn the spare room into an art studio or a man cave. The two of them had been growing apart as of late and this was the tipping point for Debra so she left the home. She made it clear to Don and her friends that she no longer wished to be with Don and that their relationship was over.  


After two months apart, Don passed away suddenly in his man cave.  Don had changed his will after he and Debra separated such that he wanted to leave the house to his daughter from a previous relationship. This daughter, Diane, also acted as the executor of his estate.


Diane and Debra did not get along. Debra approached Diane after learning of Don’s passing inquiring about the house.  Diane said the house was going to be hers now based on the Will and there was nothing Debra could do about it.


If You Were the Judge, How Would You Decide? 

As Debra and Don separated before Don’s death, Debra is not able to challenge Don’s Will under the Wills, Estates and Succession Act. However, because Debra is considered a spouse under the Family Law Act (“FLA”), she can sue Don’s estate seeking her share of the property. Under the FLA, Debra is entitled to a share of family property as of the date of separation, which includes the home they purchased while together. Debra could sue the estate and should obtain an order entitling her to the value of one half of their property from Don’s estate. Despite their separation and Don’s death, Debra can still get her fair share.


The passing of a spouse after separation creates some interesting legal issues and limitations. If you have a situation similar to the one above, we recommend you seek the advice of a lawyer, as these sorts of scenarios can be complex. It is important that you understand your rights. 

Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By George Gunnink

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!

Executor Beware!

Claire left a will that she did not update after she separated from her husband. Upon her death, litigation ensued to try to sort out who should take on the executor’s duties and who should receive her estate. Rather than have a judge decide the matter, a settlement agreement was reached, where Claire’s late husband’s niece, Administrator Annie, would take on the executor’s duties (as an administrator) and the estate would be split 55% to her, and 45% to Claire’s nieces and nephews.

 

Annie did her best with the estate. She knew she had to make sure the estate’s debts were paid but wanted to pay her and the beneficiaries’ shares out of the estate before she was certain that this was done. This is quite common and is usually done by holding back part of the estate money. Annie realized that the estate owed income taxes, received an estimate of what the taxes would be, and kept $25,000 in the estate accounts to satisfy the debt. Unfortunately, the taxes were mis-calculated, and Annie was about $20,000 short of estate money to pay them. Annie didn’t think it was fair that she should have to pay all of this debt herself and asked the beneficiaries to return part of their money to help her pay it, as well as other estate expenses that she had incurred. They refused. So, she asked the court to step in and order them to do so.


What would you do if you were the Judge?

The judge dismissed Annie’s claim. The Income Tax Act places the responsibility for an estate’s taxes solely on the executor/administrator of an estate. The court pointed out that Annie had many opportunities to protect herself from this kind of scenario: in the settlement agreement with Claire’s family, she could have added language making them responsible along with her (up to their % of the estate); she could have held back more funds than she did; and at the time that she paid out the estate to them, she could have required that they agree to shoulder part of the tax debt if it turned out the holdback wasn’t enough. She did not do so, so she would be solely responsible to pay the estate’s outstanding income tax and expenses.

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

MacMillan Tucker

5690 176A Street

Surrey, BC V3S 4H1


Tel: 604-574-7431

TF: 800-658-7974

Fax: 604-574-3021

E: inquiries@mactuc.com

Hours

Monday - Thursday 09:00 AM - 05:00 PM

Friday 09:00 AM - 04:30 PM

Service Area

Surrey, Langley, Delta, White Rock, Burnaby, Richmond and Vancouver

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