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 CASSANDRA DOUMA
OVER THEIR DEAD BODY???
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? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – BY JASON SANGHA, GUEST WRITER
OVER THEIR DEAD BODY???
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? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
When Husband Henry and Wife Wendy tied the knot, they were both on their second marriage. Husband Henry bought a new house for the two of them to share. They also ran a Bed & Breakfast in the new house which brought in a modest amount of income.
Husband Henry had a child from a previous marriage and wanted this child to eventually receive an inheritance. To ensure this, he put the house in his name only. However, Husband Henry did not want Wife Wendy to be kicked out of the house they shared after he died, so he left Wife Wendy a life estate in his will. The life estate said that Wife Wendy could live in the house for the rest of her life, but did not set out any other terms.
Husband Henry subsequently passed away and Wife Wendy remained living on the property. Greedy Gary, Husband Henry’s only child, executor, and sole beneficiary, planned on buying himself a yacht when he received the proceeds from selling his father’s property. After Greedy Gary transferred the title of the house to his name pursuant to the will, he tried to pressure Wife Wendy to sell the house. Wife Wendy wasn’t sure if she wanted to sell the house and wouldn’t give Greedy Gary a firm answer. Greedy Gary became impatient and applied to the Court to have the property sold. He also asked the Court to order that Wife Wendy reimburse him for various expenses he had paid, and to hand over any profits the B&B had made since Husband Henry passed away. Wife Wendy opposed Greedy Gary’s application, arguing that she was entitled to stay at the house as long as she wanted, she was not responsible for the expenses, and she was entitled to keep the B&B profits.
How would you decide if you were the Judge?
A life estate entitles its beneficiary to sole possession of the land for his or her lifetime. Once Wife Wendy dies, Greedy Gary will be entitled to the entirety of the property, but not until then. Because Greedy Gary only received the property because of his father’s will, he is bound by any restrictions stipulated in it. Here, that is Wife Wendy’s life estate and Greedy Gary received his ownership of the property subject to it.
If the instrument that creates the life estate does not set out detailed terms, common law terms apply. The life tenant is entitled to all benefits of the property during the term of the life estate, so Wife Wendy is correct in that Greedy Gary cannot force her to leave the property or sell it, and she is entitled to keep any profits the property generated since Husband Henry passed away.
Whether Greedy Gary is entitled to be reimbursed for expenses depends on what those expenses were. Under common law, Wife Wendy is responsible to pay any recurring expenses such as maintenance, utilities, insurance, and property taxes. Any capital expenses which contribute to the value of the property itself, are the responsibility of the registered owners (for example, repairs to the structure).
If Wife Wendy did want to leave the house and allow Greedy Gary to sell it, she could ask the Court to calculate the value of her life estate and she would be entitled to be ‘bought out’ for that amount. In making this calculation, the court would start by looking at Wife Wendy’s age and the present fair market value of the property.
Cassandra Douma 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, personal injury claims, 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 JASON SANGHA, GUEST WRITER
Executors at an Impasse!
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 judgement!
IT’S THE LAW – BY JASON SANGHA, GUEST WRITER
Executors at an Impasse!
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 judgement!
Walter passed away in 2015. He left a will naming all three of his adult children, Sarah, Daniel and Kim, as executors equally responsible for administering his estate after he passed. The three children were also the three equal beneficiaries named in the will.
In 2017, the children’s relationship with each other completely broke down. Sarah, Daniel and Kim had an argument about what to do with an asset of Walter’s estate – his house. Sarah no longer spoke with Daniel or with Kim, but Daniel and Kim remained close with one another. Sarah felt that the house should be sold as the market was “hot” and that all the liabilities of the estate should be concluded and finalized from the proceeds of the sale. Sarah also accused Daniel of continuing to live in the house so that the house could not be sold because Daniel wanted to buy the house himself at a lower price when the market cooled down. Daniel and Kim argued that Daniel had only been living in the house in order to maintain the house in good condition. Daniel said that he had wanted to buy the house for himself since their father’s passing, but it had not happened yet because Sarah had been so uncooperative. The fate of the house remained uncertain.
Sarah filed an application to the court asking that the court decide the best way to sell the house, including an option for Daniel to purchase the house at an appraised value and retain a qualified accountant to address any final estate tax implications. Daniel and Kim filed a responding application asking that Sarah be removed as an executor, arguing that she was the impediment to matters progressing. Daniel and Kim argued that Sarah’s proposal for selling the house was not appropriate as it was uneconomical because it required hiring more professionals. In their view, the expenses were not in the best interests of the estate.
What would you do if you were the Judge?
The Judge agreed with Sarah. A court can remove an executor in order to resolve a deadlock among executors, even if there is no wrongdoing by any of the executors, but it can also choose to intervene in the administration of an estate to resolve a deadlock among executors. The court decided that the executors were not capable of carrying out the remainder of the administration on their own, as communication and cooperation among them had broken down. The Judge decided that it would not be appropriate to remove Sarah as an executor as it would likely lead to further conflict and time-consuming litigation if Sarah as a beneficiary did not agree with how the estate was administered. The court ordered that the house be sold on stipulated terms including requirements that the executors retain an appraisal firm and that Daniel have the option to buy the house at the appraised value if he chooses.
This case demonstrates the difficulties that can arise when a will name more than one person as an executor. The law requires executors to act unanimously, not by a majority unless the will says so when administering an estate. Choose carefully and bear in mind the potential pitfalls of naming multiple executors to act together.
Jason spent some time articling in Cloverdale with 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 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 judgement!
THE ADEQUATE, JUST AND EQUITABLE WILL
A couple from India immigrated to Canada and managed to build a wealthy farm. They had 4 daughters and 2 sons. As the children grew up, they were expected to work on the farm and contribute to the business. Not only did the daughters have to work on the farm, but they also had to do the family chores inside the family home. One daughter, who worked outside the family business, was expected to make her employment income available to the family business. As the family all worked together in the family business, they became wealthy and eventually owned a house in Vancouver and a 73-acre farm in Richmond.
When the couple passed away, the daughters discovered that they had been treated rather unfairly in their parents’ wills. The estate was worth approximately $9 million, but under the wills, the daughters only received an inheritance of $150,000 each, while the sons received $4.2 million each.
Despite intense cultural pressure, the daughters started court action, saying the will should be varied to make it fair for all the adult children.
What Would You Do If You Were the Judge?
The court varied the will and awarded the daughters $1.35 million each, with the sons still receiving more at $1.8 million each. In BC, the will maker’s views are paramount, however, a will can be varied if the will-maker did not make it adequate, just, and equitable to the will maker’s spouse or children. In this case, it went against public policy to discriminate against women on the basis of sex, even though it may be a long-standing cultural tradition from India. The court could not let that will stand as it offended basic Canadian values. Similarly, if a will-maker disinherited a homosexual child on those grounds, the will would likely be varied.
If you feel like you have been written out of a will for no good reason, you should consult a lawyer as there may be a remedy for you as there was in this case.
Corey J. Bow is a lawyer who practises 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!
THE PRINCIPLE OF TESTAMENTARY AUTONOMY
Father Farley left a will dividing his considerable estate ½ to his son Industrious Ian, and ½ divided equally among his daughter Hard Luck Helen and her two children. Farley was not survived by his wife. Farley and his wife had given his two children similar opportunities in life – they had the means to help the kids get into real estate, gave them financial assistance when life was tough for them, and generally tried to treat them similarly. Unfortunately, Helen did not have an easy life. Her real estate investments failed due to poor timing of the market, and she became somewhat unstable following her separation, to the point where she started to have (in her parents’ view) an alcohol problem. At the time of Farley’s death, she was living on a disability pension and had very little to her name in the way of assets. Helen had a reasonable relationship with her parents and had never treated them badly. Ian too was living on a modest pension at the time of Farley’s death, as he had suffered a serious brain injury and further accident. However, he had a very healthy asset base – he had worked with Farley in the family business, helping his father build value in the business. Ian had a much more stable life, and also had the benefit of his wife’s income and support.
Helen was not pleased with Farley’s will and asked a court to vary it, to give her more. She was successful in this venture, with the judge finding that Farley had failed in his moral duty to his daughter. She was awarded ½ of the estate, with Ian’s share reduced to 1/3 and her children’s shares reduced to 1/12 each. Ian was not too pleased with this and asked the Court of Appeal to reconsider the judge’s decision. He did not think it fair that his Father’s wishes and intentions should be discounted to the extent they were.
What Would You Do If You Were the Judge?
The Court of Appeal agreed with the trial court that Farley had not done for Helen what a judicious parent would do for a child in her circumstances. However, the judges were uncomfortable with the ½ given to her by the trial judge as they felt that not enough consideration was given to the nature of Ian’s relationship with his parents, his contribution to their estate, and the size of Farley’s estate. They reasoned that if there is plenty to make adequate provision for Helen while at the same time recognizing Farley’s desire to give Ian a sizeable share of the estate, they should more closely follow the will. And that’s what they decided: to leave the grandkids each the 1/12 ordered at trial, and 5/12 to each of Ian and Helen.
This case demonstrates the ongoing tension that courts are asked to resolve between parents unfairly disinheriting their children while recognizing the principle of testamentary autonomy (a will maker should be able to do what they wish with their estate).
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 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.
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!
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Whose House Is It, Anyway?
Jack and Jill were partners in a real estate venture. Many years ago, they purchased a property together, with each of them contributing one-half of the purchase price and closing costs. They found a renter for the property and opened a bank account together, where all the rent was deposited, and expenses were paid from. They each reported 50% of the income and expenses for the property on their tax returns. Jack died before Jill and left a will that left his whole estate to his children. Prior to his passing, he spoke with his kids about the property and their options for it – keep it as continuing partners, sell it out to Jill, or agree with Jill that it be sold. If only it was that simple. Jill had different ideas for the property and bank accounts. Her position was that the property and accounts were registered in both her and Jack’s names as joint tenants with the right of survivorship, conveying that both her and Jack’s intention was that if either of them passed, the other would get the property and account proceeds. She alleged that there was an oral agreement between them that supported this position.
What Would You Do If You Were the Judge?
A Supreme Court judge sided with the executor of Jack’s will and concluded that Jill had not rebutted the presumption against the right of survivorship with respect to the jointly held assets. That is, where there are assets held jointly between people who are in a partnership, and there is no agreement otherwise, the Partnership Act stipulates that they each have an equal interest in the assets. That equal interest continues after the death of a partner, according to the Judge’s decision. It is up to the survivor to prove that the intention was otherwise. The judge did not feel that Jill gave any compelling evidence to rebut the presumption.
Jill was not happy with this result and appealed the decision to the BC Court of Appeal. That court decided not to intervene with the lower court judge’s decision.
This case illustrates the importance of making intentions very clear when assets are held jointly between two or more persons. Generally speaking, unless the owners are spouses, the presumption is that there is no automatic right of survivorship, regardless of what the documents at a financial institution or a government registry system say. Therefore, when clients are entering into these kinds of arrangements (and other estate planning), our advice to clients is to enter into agreements that make very clear what their intentions are. A clear agreement can help to avoid a lot of unnecessary 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.