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. 

Call for feedback on behalf of the CBA

James Steele is Legislation and Law Reform Director of CBA Saskatchewan.

Comments are invited on the SK Government’s ongoing development of Regulations to support The Financial Planners and Financial Advisors Act.

CBA Members are welcomed to review the Ontario draft regulations and offer any comments on said Regulations (insofar as such Ontario Regulations will form the basis of the Saskatchewan regulations). The Ontario draft regulations may be found HERE. Any comments on the above Regulations can be submitted to James Steele at j.steele@rslaw.com by Oct 31, 2020.

Saskatchewan Estate Litigation Update

An interesting recent estate litigation decision out of Saskatchewan is Leason v Malcolm, 2020 SKQB 102.

Leason reminds us that once a  bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the  beneficiary’s estate will still be entitled to receive the share.

Background

In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.

Facts in Leason

Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect (would have vested) on the date of his death, September 9, 2018, when Jennie was still alive. Her subsequent death would have made no difference to that circumstance, and her share of the estate would be payable to her estate.

The bequest in Mr. Aronetz’s will, however, was unusally worded. It read as follows in paragraph 2:

2. … I gift my estate in equal shares unto any SURVIVING siblings, who at the present time are named as follows: (a) Jennie Leson [sic] …, (b) Anne Malcolm …, (c) John Aronetz …, (d) Lillian Whitfield …, (e) Mike Aronetz …, (f) Nick Aronetz …. In the event either of these siblings predecease me or die before having benefited in whole or in part from this my estate, I direct any such undistributed share shall NOT be redirected unto any spouse or child of such a deceased person, rather such an undistributed share shall be equally redistributed amongst the remaining SURVIVING siblings. I have not mentioned any other siblings who have already predeceased me, as this is consistent with my wishes to gift only unto surviving siblings.

[emphasis added]

The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive, and the executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.

The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.

In light of the above provision in paragraph 2 of Mr. Aronetz’s will, the executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.

The Decision of the Court

The Court interpreted clause 2 above as providing for:

  1. a gift to vest on Aronetz’s death; and
  2. if there was a subsequent death of a beneficiary, before distribution, the gift would be divested.

The Court then turned to consider whether this testamentary intention should be enforced?

The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested. As such, the above provision of Mr. Aronetz’s Will was not enforceable. The Court concluded as follows:

[30]         I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.

[31]        The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable. 

As such, the Court held that the estate of Jennie Leason was indeed a beneficiary of the estate of Donald James Aronetz, and entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.

Legal costs:

As an interesting aside,  the Court awarded full indemnity (dollar for dollar) legal  costs to both sides. Their full legal costs were thus payable out of the estate of Donald  Aronetz.

The Court noted the entire court application had been necessitated by the provisions of Mr. Aronetz’s will, and by no fault of the executor, nor the fault of the heirs of Jennie Leason. The Court held that it had been reasonable for the applicants to bring the application, and it was reasonable for the respondent to oppose it.

As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).

 

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. 

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. 

Virtual court operations in Saskatchewan

Despite the availability of virtual technology, it remains impossible in many Canadian courts to file court documents online, or hold video hearings. This article argues that Canadian court systems face two options during the COVID-19 pandemic:

  1. First, resign themselves to pause the vast majority of civil matters indefinitely, risking the loss of public confidence, and lack of justice, which could result;
  2. Alternatively, use this time to make swift investments in e-filing systems, and video technology, to allow virtual operations to continue as normal.

The rule of law is not something that society can suspend indefinitely. In an era in which many people conduct their lives online, the legal profession should embrace virtual court processes to maintain public access to court services.

For more information, please contact:

 

James D. Steele

306.933.1365

Email: j.steele@rslaw.com

Judicial technological innovations

Closings of courthouses should be a wake-up call to adopt 21st century technology

The COVID-19 pandemic has caused unprecedented disruption to daily norms in Canada. Lawyers are not exempt, and many courts in Canada have either severely reduced their case hearing schedule, or paused activity altogether. This will have a huge impact on day to day Canadians, whose lives may be waiting for decisions in family custody disputes, criminal hearings, or lawsuit seeking compensation, etc.

Canadian court systems may face a difficult time in attempting remote work. Despite the rise of the personal computer decades ago, it remains impossible in many Canadian court systems to file many court documents online, hold video hearings.

The current closure of courts reminds us that technology has the potential to revolutionize the process of serving documents, and placing them before the court.  If proper investments are made, basic technology can allow future court matters to continue remotely, and save ordinary Canadians significant time, and therefore, legal fees.

To name only two potential innovations, Canadian courts should consider the following:

  1. Allowing the majority of civil Chambers hearings (not involving live witnesses) to go forward via either telephone conference, or video conference. Massive business deals are now routinely negotiated via video, and there seems little reason why in person attendance should always be required for all court hearing;
  2. Allowing documents to be filed online, instead of requiring paper copies in physical form to be sent to the courthouse.

The Canadian legal system is not a mere luxury that Canadians can suspend for months at a time. The issue of judicial adoption of twenty-first century technology is more timely than ever, and has the potential to benefit all who seek justice.

For more information, please contact:

 

James D. Steele

306.933.1338

Email: j.steele@rslaw.com

Lawyers James D Steele