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Thursday, March 22, 2018

Can a murderer collect as beneficiary of the victim's life insurance?

While I hope that not many readers are wondering about this question for personal reasons, it's an interesting concept. If you murder someone who has named you as beneficiary under their life insurance policy, can you receive the insurance money?

There is an article discussing this very question on a blog called By the way, that blog is an excellent source of Canadian information and support for executors and I recommend it. The article, which you can read by clicking here, gives very clear answers to the question as Toronto lawyer Ian Hull looks at how the courts in Canada have dealt with it.

If you are convicted of murdering the victim and you have exhausted all rights to appeal, the court will remove you as beneficiary of the policy and you won't get the money.

Now here's a twist on it. The article also talks about whether this "crime doesn't pay" rule will stand where a person is found to have killed the victim but is found not guilty due to insanity. In that situation, the named beneficiary might still be able to receive the insurance money. In the courts, "insanity" or mental disorder can refer to a variety of illnesses or conditions.

Clearly the courts are interested in the concept of intent. If you intend to kill someone, you can't get their insurance money. No doubt this is intended both as a logical deterrent to stop us all from deciding not to wait for things to take their natural course, and a comment about the value we collectively place on human life.

What do you think of these rules?

Wednesday, March 21, 2018

Correcting mistakes in wills

Today's post has been written by James Steele, a very accomplished lawyer from the firm of Robertson Stromberg LLP in Saskatoon. James works in estate litigation and would be a great contact for those of you in that part of the country who need a good estate lawyer to help out with a dispute. Here is his article about correcting wills:

A carefully drawn will is crucial. Wills are drawn by humans, however, and some mistakes inevitably arise. Wrong words can end up in a will by slip of a pen. Or a deceased might use words which are not a correct way of describing persons or property. Or perhaps the lawyer just didn’t quite understand what the deceased was trying to say.

In some cases, the law can allow you to “rectify” – or fix – such a will. 

The goal here is to convince the court of what the testator meant to say, and what went wrong. The first step is to gather firsthand evidence surrounding the will, like the original instructions, and how the mistake arose. 

Courts are more comfortable admitting and considering this evidence when it comes from the solicitor who drafted the will, rather than relying on evidence from the beneficiaries who may have motivations to change a will in their favor. Thus, you should begin by trying to find out more from the lawyer involved.

Other times, there might be clear-cut written evidence from the deceased’s own hand. A good example of this came from my home province of Saskatchewan. In the case of Heaton Estate, the deceased had provided the lawyer with a written memo showing her wish to benefit certain southern Saskatchewan museums with a 20% share of her estate. By mistake, the ultimate will only provided a 10% share to the museums.

The court was provided the deceased’s handwritten memo,  and found that the deceased had indeed wanted “her generosity to be applied as per her memo.” Therefore, the museums received 20% and not 10%. To make this happen, the court effectively “added” the necessary words to the will.

So long as wills are drafted by humans, mistakes will occur. If you encounter a drafting error in your loved one’s will, you should consult a lawyer on whether rectification can help fix it.

James Steele is an lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan ( He practises in the area of estate litigation. The above constitutes general overview of the subject only, and readers are advised to consult a lawyer for specific advice. 

Sunday, March 18, 2018

Clients go public after Ontario estate lawyer charges them for complaint against him, so I'm taking fewer demanding clients

I've been a lawyer for a long time. A very long time. Most days I absolutely love the job and my clients. I see my role as a guide for those who have to navigate their way through the legal system. I'm neither the boss who tells the client what to do, nor the servant who does everything she is told to do. We work together.

Something I've come to understand over the years is that clients don't always see things the same way I do. This may the first time they've been involved in an estate, but it's not my first time. They have lost a loved one, but I haven't. The family that is fighting isn't my family. Though I may have a great deal of compassion for a client who comes into my office for help, they are emotional and unsure about the legal system and my role.

When I advise a client about what to do, my advice is an amalgam of my knowledge, my experience, their goals, and their circumstances. I try my best to toss in a big, healthy dose of reality to keep the client grounded. Most of the time, the working relationship is great and at the end of the legal proceedings we all part as friends.

Every couple of years, however, I run up against a client who simply does not listen, or takes advice from too many people and ends up confused, or who honestly thinks that I should do everything he or she wants, no matter how ridiculous or pointless or spiteful. These are the clients who are so wrapped up emotionally in the estate that they cannot think rationally. My heart goes out to them, but let's face it, they are difficult clients for me and my staff. No matter how great a job I do for them, they are not going to be happy. They get not only my legal advice, but many extra hours of my time and a shoulder to lean on. You better believe that the constant propping up of distraught people can be tough on me too.

So when I read a story on CBC about a family who made a complaint to the Ontario Bar Association about their estate lawyer, I had mixed feelings. To me, the fact that they called the media to "go public" meant that they were actively searching for a way to hurt the lawyer. They won't get anything out of going public other than bitter satisfaction that they've damaged someone's reputation and business. Creating backlash seems to be an extremely popular activity these days. The prevailing attitude seems to be that if you're unhappy, try to make sure everyone else is too.Click here to read the story.

The article talks about a woman who didn't like how her lawyer handled her father's estate. Her complaint to the Law Society found that the lawyer didn't do anything wrong. That part isn't really unusual, since as I said, many clients don't really understand the legal system and are not sure whether it was used to their full advantage. It was after that finding that it all went off the rails. The lawyer sent the family a bill for responding to the complaint. They were offended and went to the media.

The media inflated the story to make it as sensational as possible. Their headline was "Lawyer charges grieving family thousands for time spent responding to complaint against him". It wasn't just a client involved, never mind a vindictive person; it was a "grieving family". The "thousands" referenced was in reality $2,300.

In this lawyer's shoes, I wouldn't have charged for responding to the complaint because all that did was ramp up emotions that were already out of control. But I can see his point. He would have just sat through the complaint process where people pointed fingers and made accusations even though he had handled the estate properly. I'd be ticked off too, as would anyone in any job who was wrongly accused. All estate lawyers get pretty tired of those few clients who exist in an eternal emotional frenzy and simply cannot be calmed down no matter what you do.

I'm getting smarter about choosing my clients. After putting in this many years, I feel that I'm entitled to pick my clients just as clients pick their lawyers. I am winding down my willingness to invest my time and effort in clients whose emotions and attitudes render them completely unable to think straight. I just don't see the point in dealing with the truly impossible clients anymore, even though they are the ones who possibly need me the most. I can handle difficult clients but I'll no longer work with the completely irrational ones. Otherwise, I'll be the next lawyer whose clients complain that I'm not doing the job. I recently had a client who emailed me 9 times in one day - and got replies - then complained (to me, not to the Law Society) that I was not in close enough touch with her.

At the end of the work day, I want to go home to my family just like everyone else does. Life is too short to spend defending myself from bitterness. If the end result of "going public" is that fewer lawyers will handle your case, so be it.

*The attached photo is one I took of a corner of the St. John's courthouse.

Friday, March 16, 2018

Executors and charities disputing how to use $2 million donation

Frankly, a lot of estate disputes are unnecessary. If people would use their heads rather than their emotions, we could avoid a lot of the trouble surrounding estates. Here is a case in point. Robert Clark of Kingston, Ontario, died in 2016. In his will he left several million dollars to charities, including 2 million to the Canadian Cancer Foundation. One million has already been paid to them, with the rest soon to be paid.

Mr. Clark's executors, meanwhile, were moved by a video asking for donations specifically for pancreatic cancer. They asked the Cancer Foundation to apply the funds from Mr. Clark's will to that cause. However, using the funds that way is not what the will says. The Cancer Foundation has refused the idea of directing most or all of the funds to pancreatic cancer, stating that it is going to follow the wishes of the deceased to the letter.

The executors have followed the current trend of complaining publicly by taking this story to the newspaper. Click here to read a detailed article in the National Post.

The article contains quotes from the executors stating that the deceased "would have wanted" to direct his funds this way. But the fact is, he didn't. He could have put whatever he wanted in his will and he did not direct that his money go to pancreatic cancer. He stated his wishes whether his executors like it or not.

Executors do not have the right to change the deceased's will. Their job is to carry out the will to the letter. It will be a real shame if these executors persist all the way to court, where the estate funds will be wasted on legal fees rather than going to the charity.

If these executors want to benefit a specific charity or cause, let them use their own money.

Tuesday, March 13, 2018

What happens if the estate is not paid out within the "Executor's Year"?

I have blogged before about the so-called "Executor's Year", a common-law concept that says an executor should have wound up an estate within a year. Most of the time, beneficiaries of estates are content with using that concept as a guideline and are not too upset if there are small delays caused by events that the executor could not control.

But what happens when a year is exceeded by quite a bit and the beneficiaries have not been paid? Not all beneficiaries are okay with waiting for their inheritance.

This is where another legal concept, this one called "The Rule of Convenience" comes in. This rule says that if specific gifts (as opposed to residuary gifts) are not paid within a year, the beneficiary will earn interest on that specific gift. The interest starts running once the year is up and continues until the gift is paid.

I have recently read a very good blog post from that discusses a recent case from Ontario in which both of these concepts were discussed. Click here to read the blog post. I highly recommend it for executors who have been slow getting the estate finished. Here are the facts as set out in the blog post:

"The deceased died in October 2013.  In his last will, the deceased appointed his three children (a son and two daughters) as the co-estate trustees of his estate.  He left each of his two daughters specific legacies of $530,000.  The deceased left the residue of his estate to his son.

After their father’s death, the sisters challenged his last will.  The will challenge settled in August 2016, finding that the father’s last will was valid.  The sisters were paid their respective $530,000 legacies in October 2016 (2 years after the first anniversary of their father’s death).  The sisters resigned as estate trustees.  They also claimed that they were owed interest at 5% per year on their respective legacies commencing on the first anniversary of their father’s death."

Anybody else find it overwhelmingly greedy of these sisters to claim that the estate took too long when (a) they were the executors and (b) they were the ones challenging the will and therefore causing the delay? The greed of some people just continues to astonish me. In any event, the judge denied their application for interest. Of course, the sisters appealed that decision.

The Ontario Court of Appeal allowed them to get the 5% interest per year on their inheritance. The court said that the sisters were entitled to their will challenge and that neither the sisters nor the brother should be rewarded or penalized by the passage of time. I'm having a bit of a hard time with that one, given that the interest amounting to more than $100,000 is coming right out of the residue that the brother would otherwise inherit.

In any event, what we can take away from this case is that the courts are prepared to stick to the Rule of Convenience.

If anyone wishes to read the case in full, it is called Rivard v. Morris and can be read here.

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