In matrimonial proceedings, our clients often provide us volumes of email exchanges between the separated spouses which purport to be helpful to the cause.  According to them, the missives, for example, show how the other side is denying access or deliberately concealing income, or whatever other issue is in contention.

Indeed, sometimes the exchanges are helpful, but often they are not, and only serve to waste a lot of time and money that is passed on to the client in their next bill.

Most people understand the basic concept: if a party to a proceeding makes an admission (be it orally or in writing), it can and will be used against them.  As long as the utterances are actually relevant to a point in contention, and as long as they are presented in their proper context, they can be very compelling evidence.

But because of the rules of evidence and the old hearsay rule, the key point is who is making the point and whether or not it constitutes an actual admission against their interest.  The flip side of the rule is that whatever you say can not be used by you to prove the truth what you are claiming.

So, for example, back to the emails:  those voluminous email exchanges provided by our clients will often be composed of primarily accusations by the client against the spouse, e.g. “you have denied me access on the following occasions and for the following phony reasons….[blah, blah, blah]”.

I have news for you:  those assertions are generally worthless and do not contribute a scintilla to proving the underlying allegation. They may be relevant to showing your state of mind (that you feel you were being denied access) and to proving that the other side was on notice that there was a problem, but not much else.  Obviously, if the spouse acknowledges the allegation as being true, then we have a classic admission and the entire exchange would be admissible to prove the point and, all other things being considered,  would be very persuasive.

Moral of the story:  before printing out those 86 pages of email exchanges, make sure that they actually contain admissions by the other side that are actually relevant to something in issue.  If 95% of the copy is yours, there is not likely to be much useful content in the exchanges, and you may just end up costing yourself hundreds of dollars in legal fees as your lawyer will have to review all 86 pages, on the assumption that there is something in there useful.

Disputes often arise between co-executors or between beneficiaries and an executor during the course of the administration of an estate.  Often these disputes involve the way in which the executor is carrying out his or her duties.  Sometimes there is a long and acrimonious history between the parties that remains unresolved and contentious long after the will-maker’s death.

Unfortunately the situation will often deteriorate to such an extent that either co-executors or one or more of the beneficiaries will consider legal action to remove or replace an acting executor.  Nothwithstanding difficult or untenable relationships between the parties involved, the decision to apply to the court for an order to remove an executor should not be taken lightly.

Generally speaking, in BC the test to remove an executor is based on whether there is prejudice to the estate or the beneficiaries. The courts start from the position that a will-maker is entitled to appoint the executor of his or her choice and that discretion will not be lightly interfered with.  In a leading decision of the BC Court of Appeal, the court held that an executor would have to act “in a manner that endangered the estate, or that as executor she or he acted dishonestly, without proper care, or without reasonable fidelity”.

Situations in which an executor has been successfully removed include:

•  Where the executor’s duties were in conflict with his or her personal interests;
•  Estate assets were endangered or dissipated by the executor’s conduct;
• The executor took a benefit at the expense of the estate;
• The executor was declared bankrupt or convicted of a felony offense;
• The executor failed to distribute the assets in a timely manner following the expiration of what is known as the executor’s year; or
• The executor was incompetent or mentally incapable.

This is by no means an exhaustive list. Each application will depend on the particular facts.  Every estate is as different as the families and individuals involved. As stated earlier, the decision to apply to court should not be taken lightly. It should only be considered when all other avenues, including communication and negotiation between the parties, have failed or if the assets of the estate are in immediate and real danger.

Costs are an important consideration. If an executor successfully defends an application for removal, the estate may be liable for his or her costs. If an executor is removed, there will have to be a passing of his or her accounts and the estate will have to pay those fees. Any subsequently appointed executor will also be entitled to fees for the administration of the estate.

In conclusion, if you are a beneficiary under a will or a co-executor and you believe an executor is acting in a manner that is prejudicial to either the estate’s assets or your interests under the will, consult a wills and estates lawyer regarding your legal remedies.

Part of my practice involves obtaining committeeships for adults (adult guardianships) who have lost mental capacity, which I discuss in this post http://www.bcheritagelaw.com/blog/estate-litigation/what-is-a-committeeship-and-why-you-might-need-one/. In the case of a committee application, sometimes the family doctor or another family member can offer evidence through affidavit about the vulnerable adult’s wishes. This evidence may be helpful for the Court in making a committee application, and helpful for the appointed committee (guardian) as they begin to make decisions for the adult.
With proper planning, a committee application is usually not necessary. However, your family members may live significant distances away, or have acrimonious relationships with each other, and thus not be fully aware of your wishes. If possible, it may be wise to have some significant discussion with your chosen decision makers (i.e. anyone you nominated in a Representation Agreement and/or Power of Attorney, family members, and those you suspect might cause some fuss) about your wishes, and to have some of those wishes legally documented. Here’s some topics to consider:
1. Do you have any views on where you want to live? Do you want to stay at home as long as possible? Do you wish to move in with particular family members, or do you want to live in a carehome with your friend? For example, if you live in Vancouver, but your children are in Nanaimo and Victoria, what is your preference, and why?
2. Who do you want to be able to visit? If there is family acrimony, for example, between your current spouse and your children from a previous marriage, do you want to give some directions about visitation? Are there close friends that your children might not know about because they live elsewhere? You might want to create a contact list and share it.
3. Are there any activities that are important to you, even if you are no longer able to fully participate? For example, you might be a member of your church choir for many years, and if the day should come where you are no longer able to participate, you would appreciate being taken to performances.
4. Religion is often a touchy subject, but if you have views, you should make them known while you can.
5. If you have an illness, and you think it may worsen, you may wish to discuss possible treatment options. For example, if you are diagnosed with cancer, and become incapacitated, what treatment (if any) do you wish to have? Family members might have conflicting views about what your views are based upon conversations at different times in your life, and might be unsure how to help you.
6. Do you regularly deal with certain professionals? Do you have a specific financial advisor or accountants? Do you deal regularly with a specific person at the bank? How are your finances organized? Where do you draw your income from?
7. Do you own anything outside of Canada? Did you buy speculative real estate on your last trip to Mexico, or do you have a pension from when you lived in Italy before you immigrated to Canada? Your family might not know about assets or income from outside of Canada, and might not be able to read the paperwork if they should find it later and you are no longer able to explain.
8. What legal documents are already in place, and have they been used? If one child has been granted a power of attorney, and used it at your direction, are there any decisions that might generate disputes later? For example, did you tell your daughter to sell the cottage and invest the proceeds in a specific way? Did you execute a Power of Attorney on or before August 31, 2011, which is silent on remuneration, but you have been authorizing your son to take a monthly amount for helping you? You may wish to consult a lawyer about having the document updated, or to have the decisions documented to prevent later disputes.

In addition to being important topics to discuss, many of these items can be documented in a carefully drafted Representation Agreement, Advance Directive, or Power of Attorney. Doing so may ease the burden on your family when trying to make difficult decisions, and give you some comfort that your wishes will be followed.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse), including important guidelines for determining legal parentage where a surrogate is involved. Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The surrogacy rules will apply if the potential surrogate and intended parent(s) enter into an agreement prior to conception for the surrogate to be the birth mother, for the surrogate to surrender the child at birth and not be a parent, and for the intended parent(s) to become the parent(s) when the child is born.

When the child is born, the intended parent(s) will be the parent(s) if:

1. No one withdraws from the agreement prior to birth,

2. When the child is born, the surrogate gives written consent to surrender the child to the intended parent(s), and

3. The intended parent(s) take the child into their care.

The surrogacy agreement is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born.

If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born. This creates the potential for a child to have more than 2 legal parents.

Note that the new rules do not distinguish between a “gestational surrogacy” where the surrogate carries the child but is not biologically related to the child and a “traditional surrogacy” where the surrogate is also the biological mother.

If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse). Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The new Act sets out three important guidelines for determining legal parentage where a sperm, egg or embryo donor is involved (see the separate post on rules where a surrogate is involved):

1. A sperm, egg or embryo donor “is not, by reason only of the donation, the child’s parent”, cannot be declared as a parent only on the basis of the donation, and is only a child’s parent if found to be a parent under the new rules.

2. The child’s birth mother is the child’s legal mother.

3. The person who was married to or in a marriage-like relationship with the birth mother (for this blog, the “spouse”) when the child was conceived is also the child’s legal parent, unless the spouse did not consent to be the parent or withdrew consent to be the parent.

If the donor, the birth mother, and the birth mother’s spouse make an agreement prior to conception that they will all be the parents of the child, then they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born.

This creates the potential for a child to have more than 2 legal parents.
If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

Generously funded by the Law Foundation of British Columbia, this report is the first comprehensive and internationally comparative study of elder and guardianship mediation in Canada.

As a person ages, mediation may be used to resolve disagreements in the context of estate planning, financial planning, organizing caregiving, developing a housing plan, discussing lifestyle choices—varied circumstances where an older person may involve family or other support people in problem-solving, especially where there is a desire to resolve a legal matter without going to court.  Anticipated changes to guardianship law in BC include mandatory mediation in certain circumstances.

Elder and guardianship mediation is a new but growing area of practice.  The work gives rise to complex ethical and practical questions in regard to maximizing the ability of the older person to participate in decisions about his or her future as well as ensuring age-based discriminatory assumptions and values are not affecting the decision-making process.

“As a province we are now at the precipice of proclaiming new legislation governing adult guardianship mediation and also of tremendous growth in the field of elder mediation, based on demographics,” says Executive Director Jim Emmerton.  “In order to move forward practitioners, policy-makers and educators require access to comprehensive information on elder and guardianship mediation.  This report fills that need.”

This large report includes consultation feedback from elder mediation leaders from across North America and compares lessons learned from key pilot guardianship mediation programs in other jurisdictions in the US and Canada.  The report concludes with recommendations for training and standards for elder and guardianship mediators, ethical standards for practice, mediation models and styles, as well as for the design and development of a court-connected adult guardianship mediation program in BC.

The report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianship-mediation.

The Canadian Centre for Elder Law strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform as they relate to older adults.

CKNW – Sept15-11 – 1.30pm- Interview with Monique (part 1)

CKNW – Sept15-11 – 1.40pm – Interview with Monique (part 2)

Sperm donors are used by heterosexual couples with fertility challenges, by same-sex couples and by single women. What are the implications? In this interview, CKNW host Simi Sara and I discuss:

• Recent reports of the high numbers of children conceived from the same anonymous sperm donor
• What you need to think about if you’re planning to use a donor:
  -      The choice of an anonymous versus known donor (friend, family member)
  -       The need for a proper legal agreement with a known donor
• Information sharing with children and the impact of disclosure on children and donors
• Recent caselaw upholding the adult child’s right to know about their biological origins, and
• What we can learn from adoption law reform

In my post on ways to avoid litigation, I noted that your executor needs to be able to find your will!    If a copy is available, you may still be able to gain probate, but there will always be a shadow over the process.   To be safe, your executor should be able to find your most recent, signed original of your will.  There are many safe places to keep it, safe deposit boxes, banks and lawyer’s offices being among the most common.  In British Columbia, you can register the location of your will through the Vital Statistics Agency for a modest fee. If you have preplanned your funeral arrangements, you should ensure that documentation is readily found.

Hopefully, your executor will be able to find your will with ease and is ready to jump in and handle your estate.  Once the will is located, the executor must then assemble a list of assets and debts owed by the deceased – and if files are not all centrally located and well-filed,  this can turn into a large-scale search mission at the residence(s), with enquiry letters to many institutions.   A little preplanning on your part may make the job a lot smoother, and take less time and effort during what is a stressful time.

Start by assembling a list of institutions you regularly deal with,  and an outline of your accounts is good idea – with contact information if necessary.  You may also want to include copies of important documents,  such as the paperwork for the family business, a marriage agreement, the family trust, or any loans you may have given.

Another idea is to retain copies or an index to your assets and important documents on a thumb drive or CD,  but ensure that your original will and any other testamentary documents are kept intact (do not remove the staples!) and in a secure, registered location.  It’s a good idea to keep it all together, and update the index/copies as needed on a regular basis.

1.    Consider the family history when planning your estate – especially blended families

Your family has had a lifetime to build their relationship – and you should consider it when you planning your estate.  If you treat siblings unequally in the will without reason, it may lead to resentment, alienation, and litigation.  If there is a reason for unequal treatment, such as gifts or loans during your lifetime, it’s a good idea to document it carefully.  If you have made gifts or loans to one, and the other(s) know about it, you should consider dealing with that too.

Blended families are often fraught with friction, between spouses and offspring from different marriages.  The size of the estate, and how and when it was amassed may further the conflict. Careful estate planning can reduce the likelihood of litigation.

2.    Avoid a property war

Many families have prized possessions – a cottage, grandma’s rocker, the armoire lovingly built by Dad.  Sentimental property can create a lot of stress and fighting – consider gifting specific items to specific people, or including a clause that if the beneficiaries can’t agree, everything will be sold.

3.    Remember the Wills Variation Act

The Wills variation Act allows spouses and children (but not step-children) to challenge the provision made for them in the will of the deceased.  If a person fails to make adequate, just and equitable provision for a spouse or child, the Courts will consider fully consider the circumstances and may vary the provisions under the Will.

If you wish to disinherit a spouse or a child, you should get legal advice on how to document your wishes.

4.    Consider how your assets are held (and beware joint tenancy as a tool)

First of all, make sure you know if you hold your assets in joint tenancy, or as tenants in common with others.  In general, joint tenancy means that the survivor inherits the asset outside the estate.

Many people mistakenly believe that by holding their assets in joint tenancy with another person, they can avoid probate and litigation.  Over the past few years we have seen an increase in litigation to determine whether a gift to the survivor through joint tenancy was truly intended by the deceased, or if the survivor holds the interest of the deceased “in trust” for the estate.  So if your intention is to gift the asset upon death, it is important to document it properly.

5.    Avoid challenges of incapacity or undue influence

If there is any concern about your health, you may want to get a doctor’s opinion regarding your capacity to make a will.  Dramatic changes in the contents which surprise beneficiaries (or former beneficiaries) can fuel suspicion in your beneficiaries (or former beneficiaries) that you either lacked capacity or that you were subject to undue influence.

6.    Make sure someone can find your will!

Keep it in a safe place and in British Columbia, and register its location with the Vital Statistics Agency.

7.    Beware the Home-Made Will

Home-made wills may lead to your estate being distributed differently than intended, through inadvertent mistake – for example, a gift of your RRSPs to one child and the residue of your estate, before taxes to another, may appear to have the same value to each, but may actually have a very uneven result once the taxes are paid.   A homemade will may not comply with the formalities required by the Wills, Estates and Succession  Act and be invalid – and the intestacy provisions for dying without a valid will may be very different from what was intended.   If litigation ensues, the legal fees will outstrip the cost savings of not having a professional prepare your will.

8.    Choose your Executor carefully

Choose your executor carefully.  You want someone who is diligent and can be even-handed; if you are thinking of choosing two of your adult children who do not get along now, they will likely not get along as executors and problems will follow.  In high-conflict cases, a professional  executor may be a better choice.  You should also consider setting out what compensation your executor should receive.

9.    Review your will regularly and especially after large life changes

Life doesn’t always go as one might expect – if you have a large life change, such as a separation, a tragedy, or a large inheritance, you should seek legal advice and reconsider your estate plan.

10.  Avoid surprises

Many families, and especially blended families, can avoid a lot of problems by discussing the estate plan early.  If the family already has conflict, consider having a trained mediator facilitate the discussion.

I appeared in Court recently, representing a client in a committeeship application.  The client was in a long-term marriage, and his wife has been diagnosed with dementia. She held assets in her name, and as a result he was unable to deal with them without her agreement, but she was no longer able to make decisions about investments, etc.

In this client’s case, a committeeship was the best course of action.  A committeeship is a way of protecting a vulnerable adult who is no longer capable of managing him or herself, his or her affairs, or both, under the Patient’s Property Act.  The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as the result of an accident.  Once a person is appointed committee of the vulnerable person, he or she  will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the person’s estate (financial decisions), or both, depending upon what is granted by the court.  More than one person can be appointed committee.

In a simple case, a brief court appearance by a lawyer is required to have someone appointed committee.  The court will base its decision on what is in the best interest of the vulnerable adult, and in making this decision, the Court will review evidence, which includes:

• the sworn statements (called affidavits) of two medical doctors regarding the vulnerable adult’s capability, diagnosis and prognosis;
• a sworn statement from the applicant setting out the vulnerable adults’ family, residence, and financial situation;
• the consent from other affected family members, if possible; and
• the position of the Public Guardian and Trustee, which reviews the application before it goes before the judge.

The Court will make an order if it is in the best interests of the vulnerable adult, and will consider:

• whether immediate family members are in agreement;
• whether there is any conflict between family members or between the family and the adult;
• what is the level of previous involvement with the vulnerable adult;
• what is the proposed committee’s level of understanding of the vulnerable adult’s current situation, and will be able to cope with future changes;
• whether the proposed committee will provide love and support;
• whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the vulnerable person’s benefit;
• who is best to advocate for the vulnerable adult’s medical needs;
• the plan of care and management for the vulnerable adult and his or her affairs.

In  the usual case, the evidence is presented in written form and applicants do not have to attend the hearing.   Depending upon the family relationships and the person’s financial situation, the court may require them to post a bond in security for their management of the assets. Once made committee, the applicant will also have to have their accounts of the person’s financial assets reviewed on a regular basis.

Once the committee is appointed, the Court retains the its parens patriae jurisdiction to ensure that health care decisions are being made cautiously and in the patient’s best interests. (For a recent contentious case, see Re: Palamarek, 2011 BCSC 563 at 17).