A Pair of Estate Law Musings
In considering a topic for today's blogs, I had a number of competing ideas and decided that the best approach would be just to muse on a couple of issues that I have had pause to consider over the past couple of weeks.
On a Motion for Court Approval of Minutes of Settlement under Rule 7 of the Rules of Civil Procedure, the written consent of any minor over the age of sixteen is required "unless a judge orders otherwise." It is a somewhat curious requirement in that the person whose written consent is required is nonetheless under the jurisdiction of the Children's Lawyer (subject to the supervision of the Court). It is difficult to imagine a scenario in which the Children's Lawyer does not object to the form and content of Minutes of Settlement yet the Court refuses to approve the settlement if one of these more "senior minors" withholds their written consent.
And what about this one: The presumption of advancement as between married couples is enshrined in the rather curious wording of the Family Law Act. Yet how does this presumption dovetail with the obligations of a spouse, not as a spouse, but as an attorney for property under a Continuing Power of Attorney for Property? It is a difficult issue especially when there is uncertainty as to the capacity of a donor spouse to make a transfer into joint ownership. Can a spouse benefit from the presumption of advancement in circumstances where he or she is added as a joint owner to an account while arguably acting under the Power of Attorney?
David M. Smith
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