Last week, the CBC reported a story about a garage sale, a painting by  famous artist Tom Thomson, and a sketch painted by one of Canada famous “Group of Seven” artists, Frederick Varley.  Someone purchased the two pieces of art at a garage sale for only one hundred dollars, and after having the art appraised and examined by experts, has discovered that his or her garage sale find is now likely to be worth in the six-figures- a “very conservative” estimate being at least $150,000 for the Thomson painting alone: see http://www.cbc.ca/news/canada/british-columbia/story/2012/04/12/bc-group-of-seven-garage-sale.html  

The news report does not give any details as to the shopper or the seller in this case, but executors do often sell the contents of a home, and I frequently see signs for “estate garage sales” in my neighbourhood.    These found paintings are a good example why a wise executor may have articles in the  home of the deceased appraised or valued by a professional appraiser, especially if there is substantial art or collectibles, and little is known about the origins of the items.     The appraisal values may also be used to ensure the property of the deceased is fully insured, and to ensure proper division of assets, such as where the will includes a power to distribute in specie (in its actual form) and there are multiple beneficiaries. Appraisal information is also disclosed on the Statement of Assets and Liabilities, which is attached to the Executor or Administrator’s affidavit and filed with the Court.

One of the first decisions facing a family when a loved one dies is the question of what to do with the deceased’s bodily remains. It is sometimes a difficult decision, especially when there are conflicting religious views and contentious family relationships.

In British Columbia, section 5 of the Cremation Internment and Funeral Services Act S.B.C. 2004, c.35 sets out a statutory hierarchy of persons who are entitled to control the disposition of the deceased’s bodily remains.

Although one might expect a spouse or close relative to have first priority, the Act states that it is the personal representative or the Executor named in the deceased’s Will who controls the disposition of the remains.

Many people make no provisions at all in their will for their funeral wishes.  They are content to leave the details to their executor and loved ones. If it does matter to you however, be sure to provide reasonable, practical instructions in your will that do not place an undue hardship on your executor or family members.

In British Columbia, if the deceased included written instructions in a will regarding specific funeral or burial provisions, or entered into a funeral services contract prior to death, then, as per s. 6 of the Cremation Internment and Funeral Services Act, those wishes are binding on the executor, unless they would be unreasonable, impractical or cause undue hardship. A further consideration is found in the Supreme Court of Canada’s decision in Schara Tzdeck v Royal Trust Co [1952] where the Court stated that, at common law, an executor has a duty to dispose of the deceased’s remains in a manner suitable to the deceased’s station in life.

In carrying out his or her duties, an executor may not act capriciously with respect to the disposition of human remains. In Re Popp Estate, 2001 BCSC, the deceased was cremated and her executor husband temporarily buried her ashes alongside the remains of his mother in a plot that had been intended for his mother and father. It was the husband’s intention, upon the death of his father, to remove his wife’s ashes and place his father’s remains beside the mother’s. He did not provide a plaque or headstone for his deceased wife. The deceased’s sister petitioned the Court pursuant to s. 59 of the Cremation Internment and Funeral Services Act for an order that the deceased’s ashes be disinterred and placed in a separate columbarium. The Court held that the husband’s lack of a plan for the permanent burial site of the deceased’s remains was “irregular or unpredictable” as well as “unaccountable” and therefore “capricious”. The Court agreed with the deceased’s sister and ordered that the remains be disinterred and inurned in the columbarium.  Costs were awarded against the executor husband.

In Kartsonas v Stamoulos 2010 BCCA, the family of the deceased took their dispute over the disposition of the deceased’s remains to the B.C. Court of Appeal. In that case, the deceased executed a will in 1978 naming his son and daughter as executors and beneficiaries of his estate. At some point following that he became estranged from his children and subsequently executed a new will in 2007 appointing his niece as executor and her son as sole beneficiary of his estate.

The deceased’s children initially brought an application in B.C. Supreme Court for an order that they have the sole right to dispose of their father’s remains. The main issue at that time was whether the deceased would be buried in British Columbia or Greece. The trial judge ordered the burial to take place in Vancouver and awarded joint custody of the burial to the deceased’s children and the executor niece. When the children and niece were unable to agree on whether the deceased should have a religious burial service, they were back before the court with another contested application. The children wanted a religious Greek Orthodox service while the niece argued the deceased was an atheist and did not want a religious ceremony. On a balance of the evidence, the trial judge ordered that the children have the sole right to control the disposition of their father’s remains.

The niece appealed the trial decision on the basis that the deceased was estranged from his children at the date of his death and had entrusted her to carry out his funeral arrangements. She also relied on a Representation Agreement executed at the same time as the 2007 will wherein the deceased appointed her as his representative and directed that she have complete authority over his funeral arrangements.

The Court of Appeal referred to s. 5 of the Cremation Internment and Funeral Services Act.  When a person brings a court application pursuant to s 5(4) of the Act for the right to control the disposition of a deceased’s remains, s. 5(5) states the court must have regard to the rights of all persons having an interest and give consideration to:

• The feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased;
• The rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased;
• Any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and;
• Whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

The Court of Appeal refused to interfere with the trial judge’s exercise of discretion in his consideration of the above provisions. The Honourable Mr. Justice Tysoe writing for the majority noted that, although the 2007 will and representation agreement expressed a preference as to who should have conduct of the deceased’s remains, there was no specific request for a non-religious funeral. The appeal was dismissed.

In summary, if you have specific funeral or burial wishes, be sure that they are reasonable and practicable, include them in your will and be sure to appoint an executor you are confident will follow your instructions, not only with respect to the whole of your estate but also regarding your burial requests.   Discuss your wishes with family members and consider whether your estate can bear the costs of your funeral directions.  If you want your ashes scattered from the peak of Mount Kiliminjaro, leave clear instructions and be sure someone is ready, willing and and able for the hike!

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.