Category Archives: Legal

How Does an Executor Prove the Proper Execution of a Will?

Article from Your Estate Matters, a Publication of Clark Wilson’s Wealth Preservation Group.

There are formalities involved in making a will. One such formality is with respect to the execution of a will. Section 4 of the Wills Act sets out the execution requirements. It provides in part that:

A will is not valid unless

(a) at its end it is signed by the testator……,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator. (more…)

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Amendments Expected to Tighten Probate Payment Rules

By Marvin Barkin

Amendments to the Ontario Estate Administration Tax Act scheduled to take effect Jan. 1, 2013 will tighten rules around the payment of probate fees, causing an increase in tax revenues for the province and potentially severe consequences for non-compliance.

Currently, the Office of the Ontario Attorney General administers the tax, commonly referred to as “probate tax.” When an application to probate a will is made, Estate Administration Tax (EAT) is paid on the declared asset values. Under the current application forms, there is minimal information only regarding the assets to be disposed of under the will. The application for a certificate of appointment lists only the total value of all personal property and the net value of real estate. Tax is 1.5 per cent of the total value other than on the first $50,000 where the rate is a flat $250.  (more…)

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Vulnerable Senior Fights Back

Article from Your Estate Matters, a Publication of Clark Wilson’s Wealth Preservation Group.

Stella Wasiuk is a prime example of what can happen when vulnerable and isolated seniors become involved with predatory “caregivers”.

Ms. Wasiuk met Pauline Reid in January 2009 at a rehabilitation centre following knee surgery. Ms. Wasiuk was concerned that she would end up in a nursing home. Ms. Reid offered to look after her and the senior moved in with Ms. Reid. (more…)

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Is a General Power of Appointment in a Will Valid?

Article from Your Estate Matters, a Publication of Clark Wilson’s Wealth Preservation Group.

Deciding how your estate should be distributed after your death is not an easy task, so one can see why a will-maker might want to avoid this difficult decision by including a power of appointment in their will. A power of appointment is a power given to a person to select who shall receive an interest in property. The power can be general (the property can be given to anyone) or special (the property can be given to a limited class of people).

In the recent BC Supreme Court decision, Tassone v. Pearson, Mrs. Pearson’s will  (handwritten on a stationer’s form) included a general power of appointment and provided that her estate was to be distributed “as seen appropriate” by her executrix. (more…)

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Poyser: Where There’s a Will There is a Way to Store It

Where should you store your Will?

In this Calgary Herald article John Poyser discusses the pros and cons of  where to store your Will.

John Poyser Practices as a Wills and Estates Lawyer with the Wealth and Estate Law Group (Alberta).  Former Chair of the Wills, Estates and Trusts section of the Canadian Bar Association, he co-authors a testbook for lawyers and accountants on Trust and Estate Taxation.

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Who Pays the Costs of a Lawsuit if You’ve Followed Your Lawyers’ Advice?

Estates law is perhaps the most complex area of law; it can involve not only trust and estates, but tax, business, real estate, securities and family law practice areas, to name a few. Estate administration is a complex task for Executors and Estate Trustees, and one that is best performed with of good legal advice.

Obtaining and following competent legal advice will reduce the chance of being sued as an Executor. But what happens when you’ve obtained and followed your lawyer’s advice, and a beneficiary or a creditor brings forth a legal action against you, as executor, arising out of your negligence in the administration of the estate? It’s a question most people do not consider when investing in professional advice to keep them out of trouble.
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Who Should I Appoint As My Estate Trustee?

I came across an article which was published in the Sydney Morning Herald and it discusses the importance of selecting the right person to administer your estate following your demise. (more…)

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Discrimination and Wills

The recent film, Sense and Sensibility brought to the screen Jane Austen’s powerful critique of early 19th century English values and social customs. (more…)

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Standard of Care for Trustees When Investing Trust Assets

It’s important to always seek professional advice when planning your estate as there are numerous tools that can be utilized to reduce income tax liability.  A common vehicle often used to defer income tax liability is a trust.  (more…)

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The Top 10 Issues To Consider When Planning Your Estate

Planning your estate feels a lot like preparing for your taxes.  It takes time and it’s something the average person hates to turn their mind to.  Nevertheless, a solid estate plan is, without a doubt, the best defence against the potential threats to hard earned wealth posed by disgruntled family members or tax authorities. (more…)

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