Disputes often arise between co-executors or between beneficiaries and an executor during the course of the administration of an estate.  Often these disputes involve the way in which the executor is carrying out his or her duties.  Sometimes there is a long and acrimonious history between the parties that remains unresolved and contentious long after the will-maker’s death.

Unfortunately the situation will often deteriorate to such an extent that either co-executors or one or more of the beneficiaries will consider legal action to remove or replace an acting executor.  Nothwithstanding difficult or untenable relationships between the parties involved, the decision to apply to the court for an order to remove an executor should not be taken lightly.

Generally speaking, in BC the test to remove an executor is based on whether there is prejudice to the estate or the beneficiaries. The courts start from the position that a will-maker is entitled to appoint the executor of his or her choice and that discretion will not be lightly interfered with.  In a leading decision of the BC Court of Appeal, the court held that an executor would have to act “in a manner that endangered the estate, or that as executor she or he acted dishonestly, without proper care, or without reasonable fidelity”.

Situations in which an executor has been successfully removed include:

•  Where the executor’s duties were in conflict with his or her personal interests;
•  Estate assets were endangered or dissipated by the executor’s conduct;
• The executor took a benefit at the expense of the estate;
• The executor was declared bankrupt or convicted of a felony offense;
• The executor failed to distribute the assets in a timely manner following the expiration of what is known as the executor’s year; or
• The executor was incompetent or mentally incapable.

This is by no means an exhaustive list. Each application will depend on the particular facts.  Every estate is as different as the families and individuals involved. As stated earlier, the decision to apply to court should not be taken lightly. It should only be considered when all other avenues, including communication and negotiation between the parties, have failed or if the assets of the estate are in immediate and real danger.

Costs are an important consideration. If an executor successfully defends an application for removal, the estate may be liable for his or her costs. If an executor is removed, there will have to be a passing of his or her accounts and the estate will have to pay those fees. Any subsequently appointed executor will also be entitled to fees for the administration of the estate.

In conclusion, if you are a beneficiary under a will or a co-executor and you believe an executor is acting in a manner that is prejudicial to either the estate’s assets or your interests under the will, consult a wills and estates lawyer regarding your legal remedies.

I had contemplated (and really did plan on) tackling the ins and outs of the pending new Supreme Court Rules dealing with oral examinations, but on this Christmas Eve Day, the topic just doesn’t feel ‘topical’. Instead I came across an article from yesterday’s Edmonton Journal with the headline, “Family court crowded at Christmas: Parents look to sort out holiday schedules,” that had resonance. As Alexandra Zabjek writes, “It is an annual rush. Every year, family courts experience a surge of cases in the days leading up to the holidays.” I know that unfortunate story. As a family law paralegal, what I often fear about the Christmas Season is facing that ‘annual rush’, the possibility of moms and dads trying to secure Christmas access. Despite the outcomes of such disputes, feelings of disappointment, guilt and loss are felt inevitably by parents and children alike. The old adage that “no one wins” seems never so true.

Whether we spend more or less than last year on gifts for family and friends is less significant than the expectation that the holiday season will bring family and friends closer together. We have been inculcated with the message that Christmas is all about peace, happiness and love. Sadly, that expectation creates heightened challenges and distress for the separated or divorced family, especially if arrangements for access over the holidays were not made well in advance. Even when parents have an existing access agreement or order in place, that is no guarantee disputes between them will not materialize, perhaps because the children themselves would rather spend Christmas Day with the ‘other parent’.

I have hope that this holiday season will be a quiet one – so far so good. If I could make it so for everyone, of course I most certainly would.

So should I close off by wishing all of you a Happy, Peaceful Holiday Season? Sure, I just can’t help myself!

From the UBC Law School Web Site:

UBC Faculty of Law is delighted to announce that the student-led initiative recommending that UBC Law change the name of its degree from an LL.B. (Bachelor of Laws) to a J.D. (Juris Doctor) takes effect in 2008/2009 academic year.  Second and third year students will have a choice to receive either the LL.B. or J.D. degree when they graduate. Current first-year students will graduate with a J.D.

Extensive consultations with UBC faculty, students and alumni and wider constituencies revealed widespread support for the change.  Positive feedback came from all generations of alumni, with many expressing an interest in changing the name of their degree retroactively. Information will be made available later this fall to alumni wishing to retroactively change the name of their degree designation to a J.D.

Many thanks to all the students who worked so hard on this issue including, especially, the LSS Executive of the 2006/2007 academic year.

The Memorial Society of BC, incorporated October 12, 1956, is a non-profit and volunteer driven Society. Fifty-five people who met in a church hall in Vancouver initiated it, and its current membership of 207,000 makes it the largest memorial society in North America.

Purposes of the Memorial Society

• To assist members in advance of death for the disposition of their remains;
• To assist and support the bereaved in making death arrangements;
• To promote environmentally sound arrangements for disposal of remains;
• To ensure the availability of affordable funeral arrangements through written contracts with selected funeral services providers and to monitor the practices and performance of funeral services providers;
• To engage in educational and public awareness programs in support of these purposes;
• To promote the continuance of a dynamic and responsible society.

The Memorial Society’s vision and persistent work on behalf of its members has meant that BC has the lowest cost of funerals in North America. Staff and Society volunteers assist members to prepare final arrangements in advance, keep records of members’ wishes, and help members to cope when a death occurs in a family. The lifetime membership fee of $30 enables the membership access to its contracted prices with its providers and the services of the Society’s staff and office resources.

About the Memorial Society

• Directors and employees have no vested interest in goods or services provided by the funeral industry
• Directors and employees are not employed by the funeral industry
• Directors and employees do not receive commissions on referrals made to the funeral industry
• The Memorial Society neither makes nor initiates calls to arrange a home visit to update members’ information. (This is an unethical tactic used to open the door to illegal sales of funeral goods and services.)
• The Memorial Society of British Columbia is not owned by a multi-national funeral corporation.

In the future, the Memorial Society intends to broaden its involvement by engaging the larger society to examine cultural, ethical and environmental issues concerning funeral practices.

Contact

Nicole Renwick, Executive Director

Memorial Society of British Columbia

205 – 640  West Broadway

Vancouver BC  V5Z 1G4

Phone:604-733-7705 or 1-888-816-5902

Fax:    604-733-7730 or 1-888-816-5903

e-mail. nicole@memsoc.org

Christmas, associated with the birth of Christ and the celebration of the nativity, also falls at the same time of year as pagan festivals and traditions dating before the birth of Christ.

This year Winter Solstice will occur on December 21^st at 4:04 am PST. To our ancestors, the shortest day marked the lowest ebb of the year, but it also marked the day when the sun was reborn, gradually growing in strength to the Midsummer Solstice. Many ancient monuments are aligned with the winter sunrise on the 21st of December. The most famous is Newgrange in Ireland, where a finger of sunlight shines along the dark entrance through a narrow aperture above the monument’s entrance.

The Yule festival at the winter solstice was celebrated by pagan Germanic peoples and lasted for twelve days which became the traditional Twelve Days of Christmas. The origin of the word Yule originates from the Anglo Saxon word for sun and light, most likely regarding the rebirth of the sun from the shortest day. Fires or candles were kindled to burn through the twelve days that marked the festivities. Another fire tradition was that of the Yule log, lit from the remains of last years log at sunset on the 25th of December.

Many of the symbols of Christmas echo its aspect of rebirth and hope in darkness. For example, holly was thought to be important because it retains its greenery right through the winter months, and as such is a symbol of summer life in the winter starkness.

Reflecting on 2008, it has been marked by financial and political adversity and instability, but also with signs of hope for the future.

We are wishing you renewal of spirit, hope and joy during the holidays and in 2009.

“For more than 20 years we have exceeded the earth’s ability to support a consumptive lifestyle that is unsustainable and we cannot afford to continue down this path,” WWF Director-General James Leape said, launching the WWF’s 2006 Living Planet Report.

People in the United Arab Emirates were placing most stress per capita on the planet ahead of those in the United States, Finland and Canada, the report said

Bob Ransford’s piece in the May 31st issue of the Counterpoint Communications newsletter:

I don’t like Stephen Harper. He is not a nice man. He is anything but charming. I can’t imagine spending social time with him. I have great respect for him, not as a person, but as a political leader.

Before he became Prime Minister, I helped Mr. Harper’s Conservative campaign and I had an opportunity to interact with him one-on-one.

I recall one specific telephone conversation that took place about two years ago during which Mr. Harper told me something I didn’t want to hear. He asserted his position clearly, bluntly and without any equivocation. He didn’t sugar-coat anything or dance around his position. He told me he had made a decision and that’s how things were going to be.

His position was exactly the opposite of mine.

That particular moment is the one I can point to and honestly say that was when Stephen Harper solidified my support for him as a political leader.

I disagreed with him. I found his style abrupt and lacking any human emotion. His tone wasn’t threatening, but there was no mistaking he wasn’t backing down from a position he had clearly contemplated and decided on.

But I also immediately realized the man was decisive, he had an analytical mind and a deep intellect. He also had just the right amount of confidence—the kind of a confidence a Prime Minister-in-waiting needs. He conveyed that confidence instead of exuding it.

He wasn’t arrogant, but rather assertive. You couldn’t question his motives or think that there was a hidden agenda. It was all there, right in front of you. It wasn’t a pretty picture, but it was leadership in action.

There is little team spirit on the Harper team. In fact, there isn’t much of a team. Harper’s circle of advisors is small. He appears to reach out to few and when he does, he is usually communicating his decision, rather than seeking advice.

Harper is turning out to be a great Prime Minister. He is the kind of Prime Minister Canadians need and want today. He is clear in his intentions, decisive and unwavering. My respect for him is growing.

I still don’t like the man.

I adore Brian Mulroney. He is a charming, loyal, warm and caring human being. Spending time with him is enjoyable—no delightful, interesting and humorous.

Before he was Prime Minister, I spent a fair bit of time with him. He was a captivating political figure. He was full of blarney in public and very personally engaged and straight forward in private. My support for him was without question. I worked harder than I can even imagine today to help him get elected to government in 1984.

I was proud of him when he became Prime Minister. He made you feel part of his team. Everyone was an essential player.

When he was elected, he first looked after those who were loyal to him. You never questioned his loyalty and you felt compelled to be even more loyal in return. This loyalty to old friends cost him dearly when many of those friends asked for too much then tried to parlay that into even more.

When he was Prime Minister, I had the privilege of being around the margins of power in Mulroney’s Ottawa. The early days were heady times.

Mulroney sought advice—from many, but always first from those who showed loyalty early on. He displayed bravado always promising tough decisions. But during difficult negotiations, he was the master of compromise. He loved horse-trading, especially with adversaries. There was always a deal in the works and, as the Meech Lake Accord demonstrated, often a deal simply for the sake of making a deal.

As Prime Minister, Canadians saw Mulroney as boastful, arrogant, vindictive, calculating and detached. Many grew to hate him and still do to this day.

What most Canadians saw and perceived about Mulroney was the exact opposite of what those closest to him saw. Yes, he could be crude and vindictive, but the “team’s” interests were always his first concern and he always exuded a confident style that wasn’t arrogant but rather attractive.

After the first year or so that he was in office though, I began having doubts about Mulroney’s leadership abilities. He was thin-skinned when it came to criticism and would often back down in the face of public outrage. He was too quick to make deals and try to be friends with those who would never be friendly to him.

To this day, I have great respect for Brian Mulroney. Years from now, I believe history will judge that he was a good if not great Prime Minister.

The jury is still out on Stephen Harper but, if the first one hundred or so days are any indication, he could turn out being one of Canada’s best Prime Ministers.

I still can’t imagine spending a weekend at the cottage with him, though. I probably won’t be invited anyway.

The softwood lumber dispute has been ongoing for years now, and
despite a NAFTA ruling in favor of Canada, the United States has no
plans to obey it. The recent ruling that calls for the U.S. to refund
$5-billion in illegally collected duties on lumber has not only been
spurned by Washington, it has prompted a legal challenge to NAFTA’s
authority to resolve trade disputes. Some say the reaction to the
ruling will spawn a trade war as officials in Canada look to
retaliatory measures, while others optimistically say the U.S. will
respect its international treaties. The ruling was hailed as a major
win here in Canada, and as such if it is not followed by the U.S.
there will be major reprecussions on the NAFTA treaty and general
Canada-U.S. relations.

Full Story

The U.S. Government adopted a new plan on Tueday that will save energy
by increasing daylight savings time by two months. The plan, once
implemented, will begin in March and run into November. Having Canada
and the United States out of sync could prove to cause many headaches
for industries such as transportation and banking. During the 1974-75
oil crisis the U.S. did not observe daylight savings time in order to
conserve energy, causing problems for many industries and business
people that depend on cross-border communications. Daylight savings
time is administered provincially in Canada – Saskatchewan does not
observe it – so the potential for problems increases even more.
Leaders in British Columbia are yet to comment on their plans.

For the full story click here

In an article in the Ottawa Citizen today, it notes that if you run into a new lawyer on an Ottawa street today, the lawyer will likely be female (as 66% of new law school graduates are female) and if you run into a new mother, she will likely be over 30 (as 50% of births in Ontario last year were by women over 30). This is stated to be a sign that the world is “changing for the better”. This rather thinly researched article fails to point out that huge percentages of women leave the legal profession in the first 5 years of practice and the percentage of female partners in large law firms has barely risen in recent years.

A recent cultural phenomenon has arisen where girls are acheiving in increasingly higher levels than boys in school, yet the gender gap in pay, in executive positions in blue chip companies and in partnerships in professional service firms has been slow to close.

Why the disconnect?

My theory is that school rewards societal traditionally encouraged “girl” behaviours such as obeying the teachers instructions, listening carefully, generally being a good girl by conforming to external expectations etc etc.

The “real” or post-school world rewards societal traditionally encouraged male behaviours of taking risks, being assertive in seeking out what you want, being active in the pursuit of your needs, not passively obedient in the face of externalized rules.

The article gets it further wrong by breezily suggesting that flex hours and telecommuting will keep women satisfied in the profession. For female lawyers, the difficulties are more subtle and thus more damaging than external factors such as flexible work arrangements. Let’s face it: currently, in large full service firms, the majority of partners and leaders of blue chip client companies are middle aged men. While young women are supported and encouraged by words and official policies, in practice the large numbers of women who have left before must make senior partners somewhat wary of making a significant financial investment in training – not to mention that people feel subtlely more comfortable with people who they understand, who remind them of themselves. The feeling of “different” can certainly be overcome by merit and hard work – but the question is it worth years of grinding, working longer and harder, for a goal which may or may not even be desireable: the continued crushing hard work, increased responsibility and unbalanced lifestyle of a full service large firm partner – for compensation that provides financial rewards only as long as you keep on the treadmill.

I’m not anti big firm law. The opportunity to be trained in and to specialize and master specific areas of law, to be surrounded by bright, accomplished people, the financial security of sharing profit and risk, the prestige of being an integral part of a high quality organization – all of these are to be valued.

It’s up to each lawyer, male or female, to find the situation that is right for them. That said, simple platitudes that the world is getting better because more women are graduating from law school do nothing to shed light on the real realities female lawyers face in making these decision