Renouncing as executor may not always be an automatic right

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letter probate.

However, the only asset in the estate is a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford.

Shirley Frederick desired to therefore renounce probate, and hoped the Public Guardian would assume the role.

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court held no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the public trustee in view of the minor beneficiaries. An affidavit by

Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor.

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

How to avoid your Will from becoming challenged after you die

More and more wills are being contested in Saskatchewan each year. And the sad truth is that many challenges are avoidable if the will-maker had done one or both of the below things:

  1. Hired a lawyer to draft their will, and keep good notes of their instructions;
  2. Told the will-maker’s family of the terms of the will, before they died.

On numerous occasions I have seen situations in which a person had sought to avoid the cost of a lawyer-made will. They therefore draft their own will. When the person later passes away, the result is sometimes a confusing will, often made in secrecy and without any independent notes showing the true intention. This situation often spawns litigation, which can then drain tens of thousands of dollars in legal fees from the estate. 

Thus, the first lesson is this: think carefully about perhaps hiring a lawyer to make your will. Moreover, if possible, look for a lawyer who actually specializes in wills and estates, and better knows all of the questions to ask, and situations to avoid.

Second, talk through your goals and assets with your children, and keep notes of such conversation. This is especially true if your new will is making a departure from a prior will. It is far more difficult for a child to later suggest you had dementia, or were pressured into making your will, when the child had the opportunity to talk about your will with you in person.

A will is one of the most important pieces of paper you can ever sign. It can control who is left in charge of your children, your home, and your savings. It is meant to give you peace of mind that when you pass on, your wishes will be followed. It is therefore worth putting in the time to ensure your will is done right.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Effect of Marriage or 24 Months of Cohabitation on Your Will – Changes to the Wills Act

The law in Saskatchewan used to be that an existing will would be revoked when the will maker married or upon the will maker cohabiting in a spousal relationship continuously for two years, unless there was a declaration in the will that it was made in contemplation of marriage or cohabitation in a spousal relationship.

This meant that if an existing will of a person made prior to getting legally married or cohabiting in a spousal relationship did not have the required declaration stating that it was being made “in contemplation of marriage” or “in contemplation of cohabitation in a spousal relationship” their will would become invalid upon their marriage or cohabitation of 24 months.

This law has now changed. Effective March 16, 2020 these sections of The Wills Act were repealed. This means a will made prior to a marriage or cohabitation of 24 months that occurs on or after March 16, 2020 will remain valid until a new will is created. A declaration in the will that it is made in contemplation of marriage or cohabiting in a spousal relationship is no longer required for it to remain valid upon a marriage or cohabitation of 24 months occurring on or after March 16, 2020.

To be clear, this change is not retroactive. A will that was revoked because of a marriage or cohabitation of 24 months occurring prior to March 16, 2020 will remain revoked.

These changes were enacted concurrently with changes to The Marriage Act which allows family members of a person to apply to court to nullify a marriage if a person did not have the capacity to provide valid consent.

It is important to have a legally valid will and to review it periodically to ensure its provisions are appropriate having regard to your life circumstances at any given point in time. When a person dies without a legally valid will in place they will be found to have died “intestate” and the beneficiaries of their estate will be determined in accordance with The Intestate Succession Act.

It is especially important to have your estate planning documents reviewed when there has been a significant change in your life such as marriage or cohabitation of 24 months so you can make necessary updates. Starting a family, acquiring significant property with your spouse or others, and dealing with added complexities of succession planning if you are an owner of a business are other examples of significant changes in your life warranting a review and update your will.

The lawyers at Robertson Stromberg would be pleased to guide you through these changes and provide you with practical advice for your estate planning. For more information please contact Darlene N. Wingerak at d.wingerak@rslaw.com

This post is for information purposes only and should not be relied on for legal advice. Please contact Robertson Stromberg LLP for legal advice concerning your case.

 

Why Do I Need a Will?

A commonly asked question is why do I need a will? Your will sets out what is to happen to your assets (more commonly known as your estate) when you pass away. If you pass away without a will then your estate falls into what is called intestacy. An intestate estate puts more strain and stress on your loved ones as they will first have to all agree upon and determine who will administer the estate and then do so in the absence of a formal will.

Administering an intestate estate often involves more steps than one with a will and also makes the estate subject to The Intestate Succession Act, 2019 (the “Act”) for determining who stands to benefit from your estate. The Act not only sets out who is to benefit from your estate but also in what proportions, regardless of what you may have otherwise wanted. Having a proper will therefore not only makes it easier to obtain letters probate from the court but also control who is to benefit from your estate and in what way. Failure to have a properly drafted will can also lead to more conflict and expense as loved ones argue over what they believe your testamentary intentions were.

Having a properly drafted and executed will is beneficial for your loved ones to ensure that your intentions are met, and they are looked after. A properly done up will along with appropriate estate planning can also save your estate money, ultimately leaving more for your loved ones. It can also assist them sooner in ensuring your assets from your estate flow to them in a more expeditious manner.

For more information on having your will prepared or estate planning, please contact Ben Parsonson at b.parsonson@rslaw.com or at 306-933-1353.

Am I entitled to be notified that my family member has made a new Will?

When a loved one passes away unexpectedly, the shock can be made worse by finding out that the deceased also had made a new will totally contrary to their former will.

Sometimes clients will ask me if it is legal for their loved one to make a new will, cutting out family members, or naming a new executor, all without notifying the prior executor or beneficiaries?

The answer is that yes, a person is entitled to make as many wills as they want, provided they have capacity. Moreover, there is no law requiring a will-maker to notify their prior executor, or their affected beneficiaries.

However, if you are making a new will, it is good advice to notify all of your affected beneficiaries or prior executor. Explaining what your wishes are during your lifetime, can better avoid the chance that they are later surprised by your new will, or suspicious of what motivated it.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Area of Expertise Wills, Estates, Trusts, Health Care Directives and Powers of Attorney