Deadman
Ottawa, ON
Male, 60
I help craft client estate plans; advise estate administrators and substitute decision-makers on their legal authority and responsibilities; and act as a mediator in estate disputes. In responding to your questions, I am providing legal information only; I am not giving legal advice and my response should not be construed as legal advice. Every situation depends on its own facts and you should therefore retain your own lawyer to obtain proper legal advice on your situation.
The whole system of property rights is premised on ownership by a legal entity. Your horse or your cat doesn't qualify. Depending upon the laws of your jurisdiction, it may be possible to create a trust, imposing upon someone the obligation to invest the property and use it to maintain or enhance a pet's quality of life. However, if you have a Galapagos giant tortoise, you are headed for trouble because there are usually legal time limits -- 21 years from the date of the owner's death is typical -- imposed on how long such a trust may run. And remember that preferring a pet over a close relative is likely to cause a (dog)fight after your death.
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That depends on whether the will is being submitted to a court for probate. If it is, anyone with a financial interest in the estate can file a caveat or objection to the court's issuance of the grant of probate. One of the objector's allegations may be that the will was forged or tampered with and therefore does not represent the testator's real testamentary intention. An executor who is attempting to administer the estate without probate can be forced to submit the will for probate to confirm its validity, thereby giving the objector an opportunity to challenge the will's validity.
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In 30 years, I can't recall this ever having happened with one of my clients. It's certainly not an appropriate means by which to communicate such information. That is not to say that family members are not surprised at the contents of the Will, but any surprise will generally relate to who gets what or how much -- you know, the kind of thing one might expect to see in a "New Yorker" cartoon centred around the "reading of the will" -- which is, by the way, an anachronism.
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I have seen a few unusual contingencies. Among Wills I have drafted, the most memorable one involved a bequest of $50,000 to the testator's son, with a provision that it would be cut down by one-half if the son showed up at the funeral wearing an earring. I asked the client, only slightly facetiously, if he expected someone to show up at the funeral with a camera to take a photo of his son, so as to be able to determine if the bequest was to be paid in full or cut in half. But to consider your specific example, this is what we sometimes refer to as an "incentive trust". It is a sum of money set aside for a beneficiary as a carrot intended to induce certain positive behaviour or to discourage certain negative behaviour. There has been quite a bit written in legal literature -- and perhaps in the field of psychology as well -- on the pros and cons of using incentive trusts. From the lawyer's perspective, there are a few issues that must be considered. Firstly, is there some public policy reason a court might rely upon to refuse to give effect to the contingency -- for example, because the behaviour sought to be induced is unlawful or distasteful (such as being tied to marrying, or not marrying, someone of a particular faith)? Secondly, it is important that the contingency be objectively determinable; that is, there should not be any dispute as to whether the contingency has been satisfied. And thirdly, there must be a reasonable, and specific, time frame set out for the contingency to be met. You don't want the trustee holding the funds to have to wait for an indefinitely long period of time to see whether the condition has been met.
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My own observation after 30 years in practice is that there are two situations where a fight over an estate will break out: firstly, where there is not enough money to go around; and secondly, where there is too much money to go around. There are at least three grounds upon which to challenge a will: (i) the legal formalities for making a will were not observed; (ii) the person who made the will was not mentally capable of doing so at the time; and (iii) the person was subject to undue influence or duress, meaning that it really was not his or her testamentary intention reflected in the document. A fourth possibility in some jurisdictions is that the person left out had some "moral" entitlements; for example, an adult child who appears to have been excluded for no good reason. But keep in mind that there may be serious implications about legal costs if you lose the fight. You may have to pay your own legal costs and a significant part of the legal costs of the "victors".
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That's a tricky question. Not every will of doubtful validity becomes the subject of a court challenge. And of those that do, the dispute may be resolved not as a result of a judicial prounouncement but because of an out-of-court resolution among the interested parties. Without a review of all of the decided cases, no-one could give you an informed response to your question. However, from my observation of the decided cases that come to my attention, I would say that the two most frequent bases are (i) lack of the requisite mental capacity to make a will; and (ii) duress or undue influence. These are the cases where there are factual disputes that drive people into the courtroom.
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In most jurisdictions, advances in succession law take place at glacial speed. A will has to be in writing and has to be signed by the testator (sometimes with witnesses, sometimes not). However, some wealth can be conveyed by means of a beneficiary designation -- life insurance proceeds being the most widespread example -- where there is no witnessing requirement. In some jurisdictions, laws have been enacted to allow for electronic signatures in commerce. While such laws usually have an express exclusion for wills, they may not exclude beneficiary designations. In those jurisdictions, it will evidently be possible, by means of an e-mail, to make a beneficiary designation that directs who will receive proceeds of life insurance, a retirement savings plan or a pension plan. Of course, the flip side -- the dark side? -- of such convenience is that it opens the door to fraud. Who is to know whether the deceased, who was found slumped over the keyboard of his computer, was the real author of the e-mail that purported to designate the beneficiary of his life insurance?
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That will depend on what your goals are in using a living trust. (Up in the frozen north, we call them inter vivos trusts.) If, as I infer, you are thinking of the living trust as a will "substitute", one of its main advantages is privacy. In contrast to a will, there is no requirement to submit a living trust to the court for validation. Neither the terms of the trust nor the assets it holds would become open to public scrutiny. Nor would your death create any delay in the ability of the trustees of the living trust to continue to deal with the trust property. Remember that making a will does not affect your current ownership of your property because the will does not take effect until your death. By contrast, putting property into a living trust means an actual transfer of legal ownership from yourself to the trust, so you would want to be sure that in doing so you are not putting any constraints on your ability to deal with the property as you see fit. (Of course, if you are looking at a living trust as a means of asset protection, you may indeed want to limit your access to the property so as to protect it from future claims of creditors.) The last point to consider is whether a transfer of your property into a living trust would create any unintended consequences. Up my way, such a transfer can give rise, among other problems, to immediate income tax consequences. You would have to talk to a lawyer and/or tax professional to see what a property transfer might mean for you.
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Well, first you have to be above the age of majority (with limited exceptions) in the jurisdiction where you live to even be permitted to make a will. Assuming that's the case, the most important issue is probably whether you own any assets and have any concern about how they would be distributed if you died without a will. Every jurisdiction will have rules that apply if you die without a will -- "intestate" as we say in the trade. If you were satisfied with the intestate distribution rules, you might decide not to bother with a will. For example, the rule might be that if you have no marital partner and have no children, everything would go to your parents. However, having no will means having no one with authority to dispose of your property without first making a court application to be appointed to carry out that responsibility. Do you really want to enrich a lawyer at the cost of your family?
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I can talk only about the "books" in my jurisdiction. No doubt lawyers in other jurisdictions could entertain you with their own examples. Here are just a couple of laws in the Province of Ontario that could use a revamp in order to avoid unjust outcomes: 1. Regarding the formalities for making a Will: it has to be either (i) all in the testator's own handwriting with his or her signature (although not all jurisdictions recognize these "holograph" Wills); or (ii) in any other case, signed by the testator and by two attesting witnessess. Given the advent of computers, as long as the authorship of the document can be satisfactorily validated, why shouldn't a document signed by the testator but without two witnesses be a valid Will? (In fact, in some forward-thinking jurisdictions it is possible to have a court validate a document as a Will even if the formalities have not been complied with.) 2. In many jurisdictions, marriage revokes a pre-existing Will. There are plenty of instances where an elderly person of diminished capacity (A) is preyed upon by a younger person (B) who induces A to marry B in order to revoke A's Will and inherit all or a good portion of A's estate. The problem is that the threshold capacity to marry is far lower than the threshold capacity to make a Will. Result: A will die intestate and B will get a good chunk -- even all -- of A's estate. There is no remedy available to the persons who have lost an inheritance under A's revoked Will. There should be.
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Because it is the client who comes to me, he or she is usually in a frame of mind to discuss putting arrangements in place to deal with the consequences of death. The tougher cases are those -- and, like most lawyers who practise in my field, I have had my share of them -- where the client is suffering from a terminal illness at the time of the meeting and you both know that death may be weeks, or even days, away. In those instances, you take your cue from the client and judge how to conduct the interview based largely on his or her outlook. While demonstrating empathy and understanding is important, you must bring a professional attitude to the exercise, knowing that the plan you are helping to put in place will almost certainly be the one that takes effect.
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Well, I suppose that is an estate plan of sorts. But financial planners are just as strident in warning against the dangers of outliving your money. How much of a disaster that represents will depend on what standard of living you want to enjoy for the balance of your lifetime and what type of social safety net your government offers. Even if you could plan to arrange your financial affairs so that your money runs out precisely when your time runs out, this is hardly a plan if you expect to be survived by other persons to whom you owe a moral, if not legal, obligation to provide support. (On the other hand, perhaps you have died broke because during your lifetime you initiated a plan of gifting to, and creating trusts for, those very people.) And if you don't have any such obligations, why not plan to have something left at the time of your death to give to a charity of your choice?
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Dear SOSO:
As I hope you will appreciate (and as I have repeated in response to a number of other questions), I can comment only about what the law of Ontario has to say on this issue.
Lawyers are taught early on in the law school course on wills and succession law the Latin maxim: "Nemo dat quod no habet." (This has nothing to do with clownfish, whales, turtles or evil dentists.) It means "No-one gives what he doesn't have." In the context of wills, the implication is that a direction in a testator's will to dispose of a particular asset that he or she doesn't own at the time of death will have no effect. The gift is said to "adeem" in that case.
However, there are three possible exceptions to the ademption: firstly, the will may indicate that the intended beneficiary should get a substitutionary gift; secondly, the courts may find a way to give the beneficiary something in place of the thing that the testator no longer owns; and thirdly, there are "anti-ademption" principles in the statutes of Ontario. To expand on the last two exceptions:
1. A court may determine that although the specific thing the testator (T) had when the will was made is no longer in his possession, it is traceable into something else that T does have at death. Suppose, for example, T owned a piece of farm property at the time the will was made and the will said it was to go to Jim, but between that time and the time of T's death, T transferred the farm property to his or her corporation in exchange for shares of that corporation. T no longer owns the farm property directly. A court might decide the "nemo dat" principle applies and declare that Jim is out of luck. Alternatively, it might declare that T's executor will have to find a way to cause the corporation to transfer the farm property to Jim. (This may well have serious income tax implications, but that is another story.) The court is more likely to reach the latter conclusion if T had already transferred the farm property to the corporation before the will was signed and simply neglected to mention that transfer to the lawyer drafting the will. As with so many things in law, everything will depend on the particular facts and on the particular judge's view. Courts will go through legal gymnastics and legerdemain in seeking to give effect to what they perceive the testator's intention to be. Sometimes, there are occasions when it is simply not possible to do that.
2. Ontario's Succession Law Reform Act has an anti-ademption rule that is applied in certain situations that pertain to bequests of personal property or devises of real property. I won't catalogue all of the situations, but here are a couple of noteworthy ones (which would be subject to a contrary intention set out in T's will):
(a) Suppose T's will gave farm property to Jim and the farm property was expropriated by a government authority, giving rise to T's entitlement to compensation for that expropriated property. If the compensation had not yet been paid to T by the time of T's death, Jim would be entitled to that compensation.
(b) Suppose T's new car was bequeathed to Jim but it was destroyed by a fire and T was entitled to insurance money to replace it. If the insurance money had not been paid to T before T's death, Jim would be entitled to that insurance money.
3. Ontario's Substitute Decisions Act has its own anti-ademption rule. It covers a situation where T has become mentally inapacitated and has a substitute decision-maker (S) who is managing T's property. Let's go back to the example where T's will gives his new car to Jim. Suppose that S decides that the car has to be sold to generate money to look after T's health care expenses. If that is the reason why T no longer owns the care at the time of T's death, Jim will be entitled to the sale proceeds of the car (without interest), unless T's will says otherwise.
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I am an Ontario lawyer. I can't speak knowledgeably about other countries' laws on wills, but I can point out one significant limitation this province's wills law has in relation to the wills laws of other provinces of Canada. When an error is made in complying with the formalities for signing a will -- most frequently, failing to ensure that the witnessing requirements are met -- there is nothing that an Ontario court can do to fix the problem. Courts in several other provinces have at their disposal a "substantial compliance" rule or a "judicial dispensation" authority that permits them to overlook a deficiency in the manner of execution if the court is satisfied that the document in question reflects the true testamentary intentions of the testator. The last substantial overhaul of Ontario's succession laws toook place 35 years ago. Our Succession Law Reform Act is due for another major upgrade and this would be one welcome addition.
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I am going to assume that by "writing" you mean document creation -- which in this day and age would normally be keyboarding or using voice-recognition technology, rather than handwriting.
How much time is spent on document creation and what kind of document creation will depend on whether you are focused on estate planning (in which case there will be, comparatively speaking, a great deal of creative drafting) or on estate administration (where there may be more time spent on document creation, but less creativity). Where you are retained to provide a legal opinion on an estate-related matter, there may be many hours of time spent in crafting it. If you have to conduct legal research in order to prepare your opinion, would you count those hours towards time spent?
Another feature of daily practice that makes it difficult to answer your question is e-mail. Lawyers in general spend a great deal of time in front of a computer screen, both sending and receiving e-mails. Depending on your workstyle, you may craft very detailed e-mails instead of composing letters. Does this count as "writing"
One observation I will make is that when I do not have my computer available to me for a particular day, I get very little work done. That would suggest that a very substantial part of my day is spent in document creation of one sort or another.
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Valerie:
As with many legal issues, much depends on the jurisdiction whose laws apply here. In Canada, there are two ways to designate a beneficiary for life insurance. One can either indicate that person on the insurance contract when you apply for it or sign an insurance declaration at some later time. There are no witnessing formalities -- which makes it easier from an evidentiary viewpoint to either forge or destroy an insurance declaration (especially because one does not have to submit an insurance declaration to the insurance company in order for it to be legally valid).
If you know which insurance company insured your mother's life, you can contact the insurer to see if your mother had designated a beneficiary at the time she applied for insurance or sent the insurer an insurance declaration later on. (It is the last-made insurance declaration that governs.) If you or your grandchildren are designated as beneficiaries, the insurer will tell you so. Otherwise, privacy laws may prevent you from finding out who, if anyone, was so designated. (If there is no designation, the privacy laws would likewise preclude the insurer from telling you anything, unless you are the personal representative of your mother's estate.) If there is such a declaration that names you and/or her grandchildren, it would be up to your mother's husband to show that she later changed or revoked it.
By the way, in Canada an insurance declaration can be included in a will, so you would certainly want to look at your mother's will to see whether there is an insurance declaration in it.
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Sean:
The responsibility of the administrator of an estate, broadly stated, is to preserve and protect the estate assets. You did not mention whether your father left a will. If he did, the will might have something to say about who, besides the estate administrator, should be responsible for the upkeep of the house. Assuming there is no will or, if there is a will, nothing in it would impose an obligation on someone else -- if anyone, it would likely be a beneficiary who will inherit the house (but not the entire estate) -- to bear the maintenance costs related to the house, maintenance costs would be a proper expense of the estate. That said, here are a few more specific comments:
1. A more accurate answer would require an understanding of context. Specifically, what is the anticipated disposition of the house in the course of the estate administration? Is it going to be sold on the open market or is it going to be inherited by one or more of the beneficiaries (if there is a will) or next-of-kin (if there is no will). If there is to be a sale on the open market, lawn care and other maintenance costs intended to preserve the value of the property on a sale would be entirely proper. In the latter case, you have to consider who is going to benefit from those expenditures.
2. Having a written consent from every beneficiary or next-of-kin -- assuming each of them is of legal age to consent -- who would be adversely affected by a proposed expenditure will protect you against later complaints.
3. Any expenditure for which such consents are not forthcoming should be reasonable in the particular circumstances.
4. What do you mean by the phrase "work done"? If you are talking about repairs or work of cosmetic nature that would be necessary to ensure that a good price will be obtained in a sale of the property on the open market, that is fine. But if you are contemplating a major renovation -- that is, some form of capital improvement -- that is a different story. Absent some specific authorization in a will, it would be wrong to take significant estate funds to improve the property if that improvement will be to the benefit of one beneficiary -- whether yourself or someone else -- to the detriment of other beneficiaries.
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Stoney:
To address your question, you have to start with two fundamental principles underlying succession law. First, the essential nature of a will is an expression by its author (the "testator") regarding the persons to whom, or the purposes for which, one's estate is to be given or devoted. Second, the fiduciary duty of an executor or administrator -- let's call him or her the "personal representative" or "PR" -- who accepts that role is to preserve an estate in order to carry out the testator's instructions.
A document that, while properly executed in accordance the relevant legal formalities, directs the PR to do nothing more than destroy the value of the estate would not be considered to be a will. Its author would be considered to have died intestate, with the result that his or her property would be distributed to the persons entitled in accordance with the applicable statutory scheme of entitlement. The PR's duty would thus be owed to those persons, even though the testator did not intend any of them to benefit from the estate. It would be no defence for the PR to assert that in destroying the estate value he or she was simply carrying out the wishes of the testator. And it does not matter that the testator personally could have taken such destructive actions while living.
How far the principle of preserving an estate ought to extend is evidently a subject of some disagreement among estates lawyers. I was surprised to hear a senior estates lawyer I know (and one whose knowledge of this area of law I highly respect) state that if she were appointed as the PR for a client whose will directed that he or she be buried wearing extremely valuable items of jewellery, she would follow those wishes. Her rationale was that In the Province of Ontario (as in many other jurisdictions), the PR has "control of the body" and is entitled to direct the funeral, if any, and the burial, if any, in the manner he or she sees fit. (Surprisingly as it may sound, if the will contains any directions regarding these matters, the PR is not required to follow them.) It is on that principle that this estates lawyer's view was founded. I disagreed with her for the reasons indicated earlier. To be fair to my colleague, I am sure that if her client had no other assets of any value, she might act otherwise. That is because there is an important limitation governing the actions of the PR in connection with that control over the body; namely, to incur expenses to that end that are reasonable, having regard to the size of the estate and the person's station in life. (I was once approached by a woman who was estranged from her family and who was dead set -- pardon the pun -- against making a will that directed her estate to be distributed to any charities. She wanted me to draft a will for her that directed her PR -- and she asked if I would agree to take on that role -- to spend as much of her money as possible on her funeral and burial and to bury the rest of her cash and assets with her. I declined -- as, evidently, did a number of other estates lawyers whom she had previously approached for that purpose.)
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