In my post on ways to avoid litigation, I noted that your executor needs to be able to find your will!    If a copy is available, you may still be able to gain probate, but there will always be a shadow over the process.   To be safe, your executor should be able to find your most recent, signed original of your will.  There are many safe places to keep it, safe deposit boxes, banks and lawyer’s offices being among the most common.  In British Columbia, you can register the location of your will through the Vital Statistics Agency for a modest fee. If you have preplanned your funeral arrangements, you should ensure that documentation is readily found.

Hopefully, your executor will be able to find your will with ease and is ready to jump in and handle your estate.  Once the will is located, the executor must then assemble a list of assets and debts owed by the deceased – and if files are not all centrally located and well-filed,  this can turn into a large-scale search mission at the residence(s), with enquiry letters to many institutions.   A little preplanning on your part may make the job a lot smoother, and take less time and effort during what is a stressful time.

Start by assembling a list of institutions you regularly deal with,  and an outline of your accounts is good idea – with contact information if necessary.  You may also want to include copies of important documents,  such as the paperwork for the family business, a marriage agreement, the family trust, or any loans you may have given.

Another idea is to retain copies or an index to your assets and important documents on a thumb drive or CD,  but ensure that your original will and any other testamentary documents are kept intact (do not remove the staples!) and in a secure, registered location.  It’s a good idea to keep it all together, and update the index/copies as needed on a regular basis.

1.    Consider the family history when planning your estate – especially blended families

Your family has had a lifetime to build their relationship – and you should consider it when you planning your estate.  If you treat siblings unequally in the will without reason, it may lead to resentment, alienation, and litigation.  If there is a reason for unequal treatment, such as gifts or loans during your lifetime, it’s a good idea to document it carefully.  If you have made gifts or loans to one, and the other(s) know about it, you should consider dealing with that too.

Blended families are often fraught with friction, between spouses and offspring from different marriages.  The size of the estate, and how and when it was amassed may further the conflict. Careful estate planning can reduce the likelihood of litigation.

2.    Avoid a property war

Many families have prized possessions – a cottage, grandma’s rocker, the armoire lovingly built by Dad.  Sentimental property can create a lot of stress and fighting – consider gifting specific items to specific people, or including a clause that if the beneficiaries can’t agree, everything will be sold.

3.    Remember the Wills Variation Act

The Wills variation Act allows spouses and children (but not step-children) to challenge the provision made for them in the will of the deceased.  If a person fails to make adequate, just and equitable provision for a spouse or child, the Courts will consider fully consider the circumstances and may vary the provisions under the Will.

If you wish to disinherit a spouse or a child, you should get legal advice on how to document your wishes.

4.    Consider how your assets are held (and beware joint tenancy as a tool)

First of all, make sure you know if you hold your assets in joint tenancy, or as tenants in common with others.  In general, joint tenancy means that the survivor inherits the asset outside the estate.

Many people mistakenly believe that by holding their assets in joint tenancy with another person, they can avoid probate and litigation.  Over the past few years we have seen an increase in litigation to determine whether a gift to the survivor through joint tenancy was truly intended by the deceased, or if the survivor holds the interest of the deceased “in trust” for the estate.  So if your intention is to gift the asset upon death, it is important to document it properly.

5.    Avoid challenges of incapacity or undue influence

If there is any concern about your health, you may want to get a doctor’s opinion regarding your capacity to make a will.  Dramatic changes in the contents which surprise beneficiaries (or former beneficiaries) can fuel suspicion in your beneficiaries (or former beneficiaries) that you either lacked capacity or that you were subject to undue influence.

6.    Make sure someone can find your will!

Keep it in a safe place and in British Columbia, and register its location with the Vital Statistics Agency.

7.    Beware the Home-Made Will

Home-made wills may lead to your estate being distributed differently than intended, through inadvertent mistake – for example, a gift of your RRSPs to one child and the residue of your estate, before taxes to another, may appear to have the same value to each, but may actually have a very uneven result once the taxes are paid.   A homemade will may not comply with the formalities required by the Wills, Estates and Succession  Act and be invalid – and the intestacy provisions for dying without a valid will may be very different from what was intended.   If litigation ensues, the legal fees will outstrip the cost savings of not having a professional prepare your will.

8.    Choose your Executor carefully

Choose your executor carefully.  You want someone who is diligent and can be even-handed; if you are thinking of choosing two of your adult children who do not get along now, they will likely not get along as executors and problems will follow.  In high-conflict cases, a professional  executor may be a better choice.  You should also consider setting out what compensation your executor should receive.

9.    Review your will regularly and especially after large life changes

Life doesn’t always go as one might expect – if you have a large life change, such as a separation, a tragedy, or a large inheritance, you should seek legal advice and reconsider your estate plan.

10.  Avoid surprises

Many families, and especially blended families, can avoid a lot of problems by discussing the estate plan early.  If the family already has conflict, consider having a trained mediator facilitate the discussion.

I appeared in Court recently, representing a client in a committeeship application.  The client was in a long-term marriage, and his wife has been diagnosed with dementia. She held assets in her name, and as a result he was unable to deal with them without her agreement, but she was no longer able to make decisions about investments, etc.

In this client’s case, a committeeship was the best course of action.  A committeeship is a way of protecting a vulnerable adult who is no longer capable of managing him or herself, his or her affairs, or both, under the Patient’s Property Act.  The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as the result of an accident.  Once a person is appointed committee of the vulnerable person, he or she  will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the person’s estate (financial decisions), or both, depending upon what is granted by the court.  More than one person can be appointed committee.

In a simple case, a brief court appearance by a lawyer is required to have someone appointed committee.  The court will base its decision on what is in the best interest of the vulnerable adult, and in making this decision, the Court will review evidence, which includes:

• the sworn statements (called affidavits) of two medical doctors regarding the vulnerable adult’s capability, diagnosis and prognosis;
• a sworn statement from the applicant setting out the vulnerable adults’ family, residence, and financial situation;
• the consent from other affected family members, if possible; and
• the position of the Public Guardian and Trustee, which reviews the application before it goes before the judge.

The Court will make an order if it is in the best interests of the vulnerable adult, and will consider:

• whether immediate family members are in agreement;
• whether there is any conflict between family members or between the family and the adult;
• what is the level of previous involvement with the vulnerable adult;
• what is the proposed committee’s level of understanding of the vulnerable adult’s current situation, and will be able to cope with future changes;
• whether the proposed committee will provide love and support;
• whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the vulnerable person’s benefit;
• who is best to advocate for the vulnerable adult’s medical needs;
• the plan of care and management for the vulnerable adult and his or her affairs.

In  the usual case, the evidence is presented in written form and applicants do not have to attend the hearing.   Depending upon the family relationships and the person’s financial situation, the court may require them to post a bond in security for their management of the assets. Once made committee, the applicant will also have to have their accounts of the person’s financial assets reviewed on a regular basis.

Once the committee is appointed, the Court retains the its parens patriae jurisdiction to ensure that health care decisions are being made cautiously and in the patient’s best interests. (For a recent contentious case, see Re: Palamarek, 2011 BCSC 563 at 17).

The Adult Guardianship and Planning Statutes Amendment Act, 2007 (the “Act”) came into force on September 1, 2011 and revises the Power of Attorney Act (“POAA”), Representation Agreement Act and Health Care (Consent) and Care Facility (Admission) Act (“HCC”).

The amendments to the POAA provide greater legislative certainty in both creating and exercising enduring powers of attorney.  Although existing enduring powers of attorney may be grand-parented under the Act, it would be prudent to review your power of attorney with a lawyer to determine if it needs to be modified to reflect your wishes in light of the new legislation.

Some notable amendments to the POAA are as follows:

• An attorney may not be compensated unless there is an express authorization within the document;
• An individual who is paid to provide personal or health care services is barred from being appointed as an attorney;
• The attorney must now sign the document before they can act; and
• There is an express requirement that the attorney keep and produce financial records.

Another significant change is that as of September 1, advance directives are recognized as legal documents which allow an adult to provide advanced consent to or refusal of treatment directly to a health care provider.  In other words, if an incapable adult does not have a Committee appointed or a Representative pursuant to a Representation Agreement, the health care provider can directly on instructions contained in the advanced directive.