WillPower Law: a blog on Wills & Estates

Helping you prepare for Wills & Estates matters.

Distributing estate money during a lawsuit

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Last week, an Estate beneficiary was granted an Order allowing an interim distribution to him of about half his bequest under a Will. In the case, Davis v. Burns Estate, the applicant was a friend of the deceased and a 20-percent beneficiary.

Last year, the deceased’s disinherited daughter launched a lawsuit seeking to vary the deceased’s Will, and she opposed the interim distribution. The Court allowed it.

The Court considered the age of the applicant beneficiary (76 years) and the deceased’s wishes expressed in her Will, and held that even if the daughter succeeds in her lawsuit (which had been inactive for a year), the Will likely would not be varied to such a degree that an interim distribution would put the Estate at risk.

This result was just. Normally, interim distributions in Estates are reasonable if sufficient funds are held back to allow for taxes. It is surely easier when no beneficiary disputes the Will, but if a dispute of almost any type arises, Court scrutiny such as in this case is important.

This ad ran in the Richmond News on November 4, 2016.

Written by JackMicner

February 24, 2017 at 5:00 pm

Posted in Uncategorized

What Margot Bentley taught us about end of life care

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Margot Bentley died last week. She worked as a nurse, and among the requests she made of her family over the years was to not keep her alive by machinery. Her Living Will, made in 1991, stated that.

As fate had it, she was diagnosed with Alzheimer’s in 1999, and moved to a care facility. As her health deteriorated, her family sought to follow her wishes to end her life, but the staff would not agree to it. The family chose to proceed to Court, and the now-famous case went to the Court of Appeal last year.

The Court decided against ending Ms. Bentley’s life, in part because her Living Will was not in a proper form; she died without having made a Representation Agreement.

Now that we have the new (provincial) legislation permitting people to make Advance Directives and Representation Agreements, in a recognized format, anyone concerned with how they wish to end their lives should make one.

This ad ran in the Richmond News on Nov. 18, 2016.

Written by JackMicner

February 23, 2017 at 5:30 pm

Posted in Uncategorized

Is dementia falling?

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The New York Times recently reported that, despite America’s ageing, heavier population, an important national survey has found that the dementia rate is declining.

Apparently, the rates for Americans 65 and older fell to 8.8% (from 11.6%) in the last 12 years. The recent study, which is ongoing, involved 21,000 people age 65 and older, across race, education and income levels.

India-gardeningHowever, Dr. Dennis Evans of the Rush University Medical Centre (in Chicago) urged caution in concluding that Dementia rates are declining, saying that these studies are difficult to do and the decision of whether a person has Dementia is difficult to make.

This national study, though hopeful, is only one step on a long path. Dementia is the most expensive disease in the U.S., with patient care costing more than $200 billion annually. Also, as Americans live longer, the disease may simply surface at older ages.

Researchers continue to seek the causes for it, and no preventive care is available yet, either.

This ad ran in the Richmond News on December 2, 2016.

Written by JackMicner

February 22, 2017 at 5:15 pm

Posted in Uncategorized

Will women lose under the new CPP?

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In our existing CPP system, a person’s pension amount is calculated based on many factors, namely the number of years worked and the amount contributed into the CPP.

nurse_in_geriatryIn the “old” system, women did not lose in their pension amounts by having taken some time away from work to (for example) raise children, provided they did not miss too many years from the workforce.

However, in the new system, recently fully agreed to, there is a “CPP dropout clause” under which it is not clear how women’s entitlement may change if they leave the workforce to raise children.

The dropout clause, which MPs have been debating, requires 40 years of contributions for someone to receive the maximum CPP benefits.

The Finance Minister apparently will be speaking to provincial ministers in December about this clause. Stay tuned.

This ad ran in the Richmond News on Dec. 9, 2016.

Written by JackMicner

February 21, 2017 at 4:50 pm

Posted in Uncategorized

Old Will, new (and old) law

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Last week, the B.C. Supreme Court handed down reasons for judgement in an interesting case called Pace Estate. In this case, the deceased met his spouse in 1993. They lived together with her two children and then married in 2002.

A few months before their marriage, they made Wills. In 2005 they separated, and in 2009 divorced. The deceased then, around 2013, met another person with whom he was apparently living when he died, in 2015.

elderlycoupleThe new spouse challenged the Will, arguing that, under the former law (the Wills Act), the 2002 marriage revoked the Will. If successful, she would recover a large portion of the Estate under the rules of Intestacy.

The Court, however, held that the Will was sufficiently clear that it had been made in contemplation of the deceased’s 2002 marriage, and therefore was not revoked.

However, the 2009 divorce did revoke the gifts to the former wife and her appointment as Executor.

The Will was held to be otherwise valid. The Will is now going to Probate and the surviving spouse (if she is one, which has to be determined) may choose to advance a claim against the Estate.

This ad ran in the Richmond News on December 16, 2016.

Written by JackMicner

February 20, 2017 at 5:00 pm

Posted in Uncategorized

2017: A year of turbulence?

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I have been in practice for more than 33 years now, and in all those years, my feeling is that this year was one of the toughest. We lost many outstanding artists and athletes. World politics are changing, and will continue to in 2017.

Closer to home, the real estate market appeared to peak in 2016, and although forecasts for the next year are negative, nobody can really be sure how things will go.

With that said, here are some things to watch for this year, in my humble opinion:

Pensions
I have not yet seen the updated pension figures for 2017. Normally announced in December, it appears the figures have not yet been released.

Worried and pensive senior woman talking on cordless phone. Image shot 2006. Exact date unknown.The present maximum CPP benefit is $1,092.50, and I expect it will rise to an amount over $1,100.00.

I am sure we will find out shortly. The same will apply for the OAS benefit, and likely for the Guaranteed Income supplement as well. The “enhanced” CPP, agreed to earlier this year, does not come into effect for a long time yet.

Real Estate Title planning
In B.C., real-estate title disputes have been litigated for years, and the potential is there for even more in 2017.

There are two types of property ownership the law recognizes. Our land registration system, however, only deals with one type, and that causes confusion.

The law recognizes legal ownership, which is also what our land registration system shows (when you look at a copy of a title to land). The law also recognizes beneficial ownership which generally arises from the contribution(s) a person (whether a registered owner or not) makes to the property.

For example, a married couple may live in a house where title is registered in the husband’s name only. But the wife may make the mortgage payments. She may periodically clean the property.

If the marriage were to end, the wife may choose to claim an interest in the property. The law in this situation likely will recognize a beneficial interest she has in the property.

Over the years, in Estate planning, property owners have considered transferring their titles to various family members (typically) so that their properties do not fall into their Estates on their death. That avoids the exposure to Probate fees as well as other expenses and “inconveniences.”

As real-estate prices have climbed over the past 20-plus years, these costs and capital gains (in some instances, depending on the types of assets owned) have become significant, activating various forms of planning.

In my opinion, what needs to be done is title planning at the time the property is purchased. Years later, “planning” is more likely cleaning up some kind of mess or potential mess.

In 2016, CRA imposed the requirement of reporting any title transfers of principal residences (sale or otherwise). How they will be handled from a tax perspective remains to be seen.

Regardless what happens with B.C. real-estate values in 2017, we have evolved into an environment in which title planning is essential, whether any given property is being purchased for investment or as a residence.

Transitional Care – failure to adapt to our aging population?
This problem is one of elderly hospital patients, instead of being transferred to care facilities, waiting in acute care beds. There is across the country a shortage of care facility beds. It is not a new problem.

However, the problem has worsened because the numbers of such patients have risen dramatically in the last few years. Beds which should be occupied by acute care patients are occupied by, for example, dementia patients.

That causes increased wait times for persons needing surgery and other hospital treatments.

The Globe & Mail recently published an article about one such individual, who waited six months in a Halifax hospital before a bed came available in a local care facility.

It appears as though families across the country will have to lobby their MPs (and MLAs presumably), and otherwise make their voices heard in an effort to expand home care and increase the availability of care facility beds.

These are three of what will surely be several issues we will face in 2017. May we all be up to the challenges.

A healthy, happy new year to all.

This ad ran in the Richmond News on December 28, 2016.

Written by JackMicner

February 17, 2017 at 4:43 pm

Posted in Uncategorized

New rules for Canadian life insurance

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Federal legislation kicked in on January 1 to change various tax rules with respect to life insurance. The legislation affects policies issued after December 31, 2016.

Though existing insurance policies are not affected, still you should check with your agent.

Charity donation boxIf you do not have an agent or if you have life insurance through employment, it would probably be useful to check with the appropriate department whether the new rules have any effect on your insurance plan at all.

The rules are too detailed for a description here, but the significance of insurance in any estate plan is such that it should be checked.

Anyone expecting a major payout of funds on a person’s death, which are to be used to pay various taxes, should make sure the new legislation does not affect this.

This ad ran in the Richmond News on January 6, 2017.

Written by JackMicner

February 16, 2017 at 5:00 pm

Posted in Uncategorized

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