In the weeks to come, I will explore key aspects of the new Supreme Court Civil and Family Rules that will come into effect in British Columbia on July 1, 2010. The current rules governing the discovery process, including the production of documents and oral examinations, were among those targeted for revision.

Existing Rule 26 outlines the process by which a party can discover and inspect documents. A party can prepare a Demand for Discovery of Documents (often combined with a Notice to Produce) that, once delivered to another party, starts the clock ticking, requiring the recipient to prepare and deliver a list of documents within 21 days (in practice a strict deadline is often neither observed nor enforced). One difference found in the new Civil Rules, which falls within Part 7, “Procedures for Ascertaining Facts,” is the provision that each party must prepare and serve on all other parties of record a list within 35 days at the close of the pleading period, thereby eliminating the need for a formal demand.

Of greater significance, the new rule attempts to narrow the scope of document production by stipulating that the list must set out all documents that can prove or disprove a material fact at trial and all others that the party intends to use at trial. Compare this to our current rule which requires a party to list the documents “relating to every matter in question in the action.” How can relevance be assessed in this context? In practice, the test for discovery has been the 19th century Peruvian Guano case (The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Co. (1882), 11 Q.B.D. 55). Under that test, the scope of possibly relevant documents is so broad that what can or should be disclosed is potentially limitless. The new Civil Rule 7-1 reflects the conclusion of the Civil Justice Reform Working Group that adherence to that test is no longer viable given the greater complexity of modern litigation and the prevalence and proliferation of electronic data. In the absence of a new standard for discovery, existing practices have become a barrier to resolving disputes in a cost-effective and timely manner. Yet only time will tell whether the intent of the new rule will effect tangible change to current litigation practices.

The broad scope given to the question of relevance has also impacted practices governing oral discovery. Next time, I will look at how the new rules address the use of interrogatories and examinations for discovery.

As with many areas of law, there are myths surrounding divorce and separation, which cause confusion, and leave non-lawyers feeling like they have more questions than answers.  Confusion around rights and responsibilities, when coupled with an imbalance in a personal relationship can have a disastrous result.  Too often it is the person with the most money, who can hire the most expensive lawyer who “wins.”

We strongly recommend that you seek legal advice prior to entering into any agreement, whether it is a family law agreement or any other type of agreement. If you have been presented with a document and you do not understand your rights, you need to get legal advice.   An hour on the phone with a qualified lawyer is well worth the cost and can save you money and the aggravation of dealing with a poorly drafted agreement that does not protect you or your rights.

Top ten myths in family law

These are clearly over simplified and you should seek legal advice if you require further information.

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What is a Mutual Will?

The starting point for any discussion on wills is that a person may always revoke his or her Will. This may even happen unintentionally, as each time you marry, law dictates that your Will is revoked.

A mutual Will is a binding agreement that parties will dispose of property by a Will in a certain manner, and that they will not change their Wills.

What is a Mutual Wills Agreement?

A Mutual Wills Agreement is a written agreement between two spouses to execute Wills and to not change or revoke their Will without notice to the other spouse. This is a contract at law, and there must be evidence of this. Once made and one of the parties dies, the agreement become irrevocable.

Often the spouses prepare mirror Wills and at the same time sign a mutual wills agreement containing the appropriate language.

Why would we want mutual wills?

These Wills are often considered when one spouse (or both) has concerns or fears that they may die leaving assets to their spouse, and the surviving spouse may subsequently remarry. The newly married spouse may then leave their assets to their new partner, or their new partner’s children, leaving the testator’s children or intended beneficiaries inadequately provided for. A mutual wills agreement can provide peace of mind that this situation has been avoided, as the courts will give effect to the agreement.

Can I revoke the agreement?

Either party to the agreement may revoke the agreement during their lifetime, with due notice to the other party. However, once the first spouse dies, and the second spouse receives the benefits of the first spouses’ Will, then the agreement becomes irrevocable. The agreement will also become irrevocable when one of the living spouses is unable to alter their Will due to incapacity.

What happens if the surviving spouse does change their Will?

A mutual wills agreement operates to create a trust in favour of the beneficiaries named in the Will. The trust becomes “locked-in” when the first of the spouses dies. If the surviving spouse later changes their Will and does not adhere to the terms of the mutual Will, the beneficiaries then have an action for a declaration of a constructive trust.

What this permits the Court to say is that the second spouse broke an agreement, and in fairness they cannot change the agreed upon distribution of the assets.

Alternative to Mutual Wills

Another method that may accomplish this goal would be to create a qualifying spousal trust.

Where do I find out more information on mutual Wills?

As usual, the law on mutual Wills, their creation, operation, and enforcement, is more complicated than can be addressed in a short period of time. Often people think that their estate is not large and does not require attention, or that their Will is a simple matter. This is a big mistake, especially if you wish to provide for several beneficiaries. Estate litigation, litigation over your assets after you have passed on, is very destructive to your family who remain, as well as extremely costly. It can be avoided with a well thought-out estate plan. It is important to realize, there are always good estate planning options.

Please see an estate planning lawyer, and ask the questions you have on your mind.

If you would like to know more about Estate Planning, including a Mutual Wills Agreement, please do not hesitate to contact Steve Andrea at Heritage Law.