ILN Today Post
February 20, 2018
This is Part 2 of a three-part series where Toronto wills and estates lawyer Mary Wahbi talks about the life events that should trigger a review of your will. In this instalment, she explores changes in family life situations that should spur you to update your will.
One of the most important times to update estate planning is when there has been a change in family life or relationships, says Toronto estates lawyer Mary Wahbi.
February 8, 2018
A recent statutory instrument came into effect on the 21st November 2017, which alters the way single farm entitlements are distributed in wills.
Previously, single farm entitlements could be directly passed onto specific beneficiaries in a will. If the will was silent on the issue, then the single farm entitlements fell into the residuary estate and passed to the residuary beneficiaries in the will.
December 19, 2017
The Supreme Court of Canada released its decision in Cowper-Smith v. Morgan, 2017 SCC 61, on December 14, 2017 relating to siblings disputing the entitlement to their mother’s estate.
As early as 1992, Elizabeth and Arthur Cowper-Smith of Victoria, BC, had made it clear that after their deaths, their property would be divided equally among their three children, Gloria, Max and Nathan. Shortly before he died in 1992, Arthur explained such intention to his children to avoid family discord. However, after their father’s death, the children became estranged from each other. Gloria first fell out with Nathan. She wrote him letters demanding that he not raise his voice in her mother’s home or entertain “gay males”. When he went on an overseas trip, Gloria changed the locks to the family home although Nathan’s belongings were still inside. He broke in but Gloria had the police escort him out. Nathan eventually moved to Edmonton.
ILN Today Post
October 30, 2017
Many high-net-worth Ontarians have two wills to avoid paying high probate fees, but there are pitfalls to the practice, Toronto wills and estates lawyer Mary Wahbi tells AdvocateDaily.com.
“A lawyer has to be cautious when preparing these documents because errors can be disastrous,” says Wahbi, partner with Fogler Rubinoff LLP, a full-service firm with offices in Toronto and Ottawa. “There’s no cost savings if you have to go to court for an interpretation or rectification of the wills.”
October 3, 2017
An Enduring Power of Attorney (EPA) is a legal document which enables you to appoint a person, known as your attorney, to make decisions for you if you no longer have mental capacity to make those decisions for yourself.
Everyone should have an EPA irrespective of their age or health but it is particularly important if someone is in ill-health or aging. The most important decision when making an EPA is the choice of attorney. If you have made an EPA, it is important to periodically review your choice of attorney in light of your own and your attorney’s current and likely future circumstances.
ILN Today Post
August 14, 2017
I en for nylig afsagt dom af Østre Landsret, er der kommet et væsentligt bidrag til fortolkningen af arvelovens § 42, der omhandler arvingers afkald på en forventet arv.
Det sker fra tid til anden, at en person som har udsigt til at arve en formue efter sine forældre, alligevel overfor forældrene giver afkald på at arve. Det kan der være flere motiver til. Det kan f.eks. være at den kommende arving føler, at arven kan gøre mere gavn et andet sted, f.eks. hos arvingens livsarvinger. Et andet motiv kan være, at den kommende arving er kommet i økonomisk uføre og indser, at den kommende arv blot vil gå til at dække arvingens kreditorer.
July 20, 2017
Acting as an executor can be an onerous obligation. It is important at an early stage in the administration process to understand the responsibilities of an executor to avoid any potential negligence and personal liability. An executor should act diligently and endeavour to administer an estate within 12 months. Outside of that time limit the executor should have justifiable reasons for delays that arise.
When selling assets executors should achieve the best price possible. They need to take professional advice and ensure that they follow the views of the majority to avail of the protection afforded to them under Section 50 Succession Act 1965. The views of the majority must be exercised in good faith, and without personal motivation and/or conflicts of interest.
ILN Today Post
July 13, 2017
The first Collaborative Law training in Indiana occurred 10 years ago. The presenters were Stu Webb, the Father of Collaborative Law, and Ron Ousky. Though Stu started developing the practice of Collaborative Law in the 1980’s and the practice is worldwide, it is only now coming of age in Indiana now. Indiana attorneys, mental health experts and financial professionals have all been trained in the practice of collaborative law. It is a paradigm shift for litigators and in my estimation it is the best method of dissolving a marriage. Many practitioners think of Collaborative Law as a form of ADR and those practitioners who are mediators seem to latch onto this method. We know that the vast majority of cases that go to mediation are settled, but this method surpasses mediation in client satisfaction and meeting the interests of the parties.
July 13, 2017
On 26 June 2017, the UK Government introduced a beneficial ownership register for trusts for the first time, in response to its need to comply with the EU’s 4th Anti-Money Laundering Directive. Which trusts will be affected and what will trustees have to do?
May 18, 2017
How should a personal representative (PR) deal with a request from a beneficiary for an interim distribution before the estate is finalised? Estates can take many months to conclude but a beneficiary may be in need of some of their inheritance sooner. Can an executor help out without putting him or herself on the line?
Any PR (be they an executor of a Will or an administrator of an intestate estate) facing a request for an early distribution should consider their own position as well as the beneficiary’s. A PR owns a duty to the court, both to gather in the assets of the deceased and also to ensure that sufficient estate assets are retained to meet all liabilities and pay creditors. Not all liabilities may be evident at the time of death. Failure to retain sufficient funds to pay these may result in creditors pursuing the PR personally, so a PR must exercise caution in the face of such requests.
Unless the PR was very familiar with the deceased’s finances, or the beneficiaries can be entirely trusted to return estate assets if necessary, a PR should consider taking advantage of the protection offered by s.27 of the Trustee Act 1925 and advertise for creditors in the London Gazette (and elsewhere if appropriate, depending upon the deceased’s circumstances). Once the two month notice period has expired and if the PR has still received no notification of a claim prior to distribution, any creditor who appears after distribution has to pursue the recipient of the estate funds, rather than the PR.
Section 44 of the Administration of Estates Act 1925 provides that ‘a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death’. Accordingly PR’s cannot be forced to distribute sooner but could consider doing so if they are confident that all liabilities and creditors have been ascertained.
For deceased UK domiciliaries, PRs should be aware that claims under the Inheritance (Provision for Family and Dependents) Act 1975 can be issued up to 6 months after the Grant of Probate is itself issued and the claimant then has a further four months in which to serve the claim. Therefore 1975 Act claimants can appear up to ten months after the Grant has issued.
If an interim distribution is needed sooner, a PR should consider insisting on a form of indemnity from the beneficiary to confirm that, should a claim be made against the PR in connection with the estate, the beneficiary will indemnify the PR for that claim out of the funds distributed. The PR will need to consider whether that beneficiary will be good for the money if the indemnity needs to be relied upon. Ideally the PR will also obtain confirmation from the beneficiary that the beneficiary accepts the sums distributed at least in partial satisfaction of their interest in the estate. It may be appropriate to provide a set of draft estate accounts at this point.
Alternatively, depending upon the assets comprising the estate and their administrative powers, the PR may be able to offer to loan a beneficiary a portion of their share of the estate, in return for a suitable indemnity. This is likely to be more satisfactory for a PR, as the PR still retains ownership of the estate assets, albeit in the form of an IOU. The creditworthiness of the beneficiary will need to be considered once again.
Lay PRs, in particular, can often feel under pressure from family member beneficiaries to make early distributions. However, creditors need make no exceptions for lay PRs! The law allows PRs to protect themselves and a prudent PR will do just that.