In British Columbia, unlike Ontario, intestate laws now provide the same rights to common law spouses as to married spouses, if the couple lived together in a marriage-like relationship for a period of at least two years before the death of one of them.  Recent case law out of British Columbia has grappled with the issue of identifying common law spouses in cases of intestacy. 

In Austin v. Goerz, 2007 BCCA 586, the deceased had been separated, but not divorced, from his wife for six years.  During the last six years of his life, the deceased lived with another woman, Ms. Goerz, as husband and wife.  The deceased died without a Will.  On the death of the deceased, the legally married spouse, Mrs. Austin, brought a claim seeking a declaration that Ms. Goerz was not the deceased’s common law spouse.  The lower court dismissed Mrs. Austin’s claim, and she appealed to the British Columbia Court of Appeal.  On appeal, Mrs. Austin argued that the deceased, while legally married, could not have a common law spouse as he lacked the legal capacity to marry.  Mrs. Austin also argued that Ms. Goerz was not a common law spouse as there was no financial dependence between her and the deceased during their relationship.  Both arguments were dismissed.  The Court of Appeal recognized that common law relationships can exist even though one or both partners lack the capacity to marry.  Furthermore, lack of financial dependence is not determinative in identifying common law relationships. 

Have a great day!

Bianca La Neve 

Her husband, a London millionaire, died in 2007 without leaving a Will.  As he died intestate, his estate, worth about £2,231,201 (approximately 4.5 million dollars), was distributed in accordance with the United Kingdom’s intestacy rules. According to those rules, Ms. Dielle is to receive the statutory legacy and £50,000.00 ($100,000) per year in interest from her late husband’s estate, while her two children inherit the rest of the estate.

The United Kingdom’s intestacy rules provide that when someone dies intestate, leaving a spouse and issue, the surviving spouse receives all personal chattels, a lump sum of £125,000 (just over $250,000 dollars) referred to as the statutory legacy, and a life interest in one half of the residue. The surviving spouse can only receive the interest from the residue and cannot encroach upon the capital. The issue of the Deceased receive one half of any excess over the statutory legacy and ultimately they receive the other half of the residue when the surviving spouse dies. To contrast the UK law with Canada’s intestacy succession law, please read David Smith’s blog on intestacy distribution.

This will be an interesting case to follow and is already being referred to as an example that highlights the importance of estate planning.

Thanks for reading,

Diane Vieira 

Posted on June 12^th, 2008 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode No. 114, on Thursday, June 12^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

David Smith: Good afternoon, Rick.

Rick Bickhram: Good afternoon, Dave, how are you doing today?

David Smith: I’m doing well, Rick. Rick, today we thought we’d talk about same-sex relationships and in particular, we would talk about how the changing definition of marriage and the changing view of the Courts regarding same-sex relationships have impacted upon the practice of estate administration and estate litigation.

Rick Bickhram: And this is an interesting topic as it was not too long ago, as I understand, that the Courts, the provincial and federal legislatures both addressed the question.

David Smith: Well that’s right, and what’s happened is, we all know in Ontario that the Court of Appeal in Halpern established the validity of same- sex marriage and, of course, there was then the marriage reference to the Supreme Court of Canada by the Federal Government which has validated the view and the legislation to the effect that marriage is the lawful union of two persons, not a man and woman, but two persons, to the exclusion of all others. And from an estate perspective, this has an impact because as we know, Rick, marriage has a legal significance in the context of estates, doesn’t it?

Rick Bickhram: Absolutely. And the impact that it has on it, is pretty much relevant towards the different remedies that an individual, a spouse, may be entitled to. For instance, and we will go into more greater detail as this podcast goes along, but I will just touch on some topics that are relevant to the definition of a spouse, i.e., intestacy, dependent support claims, whether or not a Will is revocable by a marriage that has occurred between same sexes.

David Smith: That’s right, Rick, and you know marriage really means something when it comes to estates. There’s sort of a common notion out there, I think, to the man or woman on the street, that if they live together for a lengthy period of time that for all legal intents and purposes their relationship enjoys all of the benefits that a married relationship has the benefit of. And we know that that’s simply not the case. The big one is intestacy and let’s talk about that for a second. What happens on an intestacy, Rick, if a man and a woman are not married as opposed to being married?

Rick Bickhram: And that’s a good question, Dave. What it sounds like what you’re referring to here is a common-law relationship.  And the question is, what happens if two parties are common-law and unfortunately one of them dies? Is the other party entitled to something? Under the laws of intestacy, no, they are not! That’s the sweet and simple answer.

David Smith: And it’s pretty dramatic, isn’t it? And, you know, the Courts and some commentators have suggested that the fact that a common-law spouse is entitled to nothing on an intestacy gives rise to a Charter challenge on the basis that in some way, it offends the equality provisions of the Charter for an unmarried spouse to get nothing on an intestacy, but for a married spouse to get something on an intestacy. 

And you know, the Courts and the commentators, there was a case in the Supreme Court of Canada, Walsh, where the Court considered this. And basically the Courts say, “well you know, marriage does have to mean something. And if you have a benefit of being married which is that you take the other’s estate on an intestacy, which is a benefit you don’t get as a common-law relationship, well that’s something that it’s reasonable to expect the parties to understand and there’s nothing wrong with having a legal benefit associated with marriage”. The other point that’s interesting, is the Court said “you know, there’s an easy way for a common-law couple to provide for each other in the event that one of them dies, and that’s, of course, for one of them to make a will benefitting the other”. But in the absence of either of those options, Rick, they have a remedy in any event, don’t they?

Rick Bickhram: Absolutely.  And another remedy that they may consider is a dependant support claim against the estate and I’ll let you go into some detail there.

David Smith: Well you know, the dependant support claim, Rick, is a powerful tool under Part V of the Succession Law Reform Act and as a common-law spouse, that entitlement is available. But you know, coming back to the point that we’ve made and the subject matter of this podcast, that is now a remedy that’s available to same-sex couples who are not in a marriage scenario. And that actually has been the law for quite some time in Ontario, which is, if you’re a homosexual couple or a heterosexual couple who are not married, the reality is that either one of you has a right to make a support claim against the estate of the other, in the event that you’re not married.

Rick Bickhram: Now Dave, under the provisions of Part V of the SLRA, the magic words are ‘dependant’. Do they…under Part V of the SLRA, define what a spouse is?

David Smith: Well, absolutely, Rick. A spouse defined under Part V of the SLRA is anyone who has lived with someone in a cohabitation arrangement for three years or more, or for a period of less than three years if they have a child together. Now the Courts have liberally construed the three year period and cohabitation has also been fairly liberally construed. What essentially happens, Rick, is the Courts want to look for a situation in which there is a basis upon which these people meet the definition of dependency and it’s going to have to look like an arrangement that had some spousal indicators.  And, you know, three years is usually the bottom line minimum number.  But again, that three years doesn’t require that they necessarily live both under the same roof.  But, of course, it’s something that they can pursue. 

You know, Rick, I think too, with the amount of time we’ve got left we probably need to just move along and consider a few of the other situations in the estate context where marriage has some significance and where the same-sex revolution in the law really makes a difference. One of these, I guess as well, Rick, is the whole idea of electing to take under the Family Law Act.  Let’s just talk briefly about that. Is that a right that’s enjoyed by common-law spouses or is it only enjoyed by married spouses?

Rick Bickhram: Good question, Dave. And under the rules of the FLA, that remedy is only available to married spouses, not common-law spouses. However, there is the option for a same-sex couple who have been married to make that FLA election as well.

David Smith: Presumably, Rick, we’re going to see some of these coming down the pipe. I mean, the reality is that legal same-sex marriage is a relatively new phenomenon.  And, you know, in our practice, we just typically haven’t seen a lot of people exercising these entitlements, but that’s only because it’s a new phenomenon. And what’s going to happen is, over the passage of time, we are going to be seeing situations in which same-sex married couples have the opportunity to exercise these benefits available to everyone. And the bottom line is that marriage, as a legal relationship between a man and a woman, a man and a man, or a woman and a woman, is going to give rise to these entitlements under the FLA as long as there is a marriage. Again, it’s fairly critical.

Yes, there are some other sort of  more mundane issues relating to estate administration. One of them is the right to be appointed as the estate trustee. That’s a right that’s available to, you know, people in a more liberal definition of spouse. So you don’t have to be married to have the right to be appointed as estate trustee in priority to anybody else. Under the FLA there’s also a right to claim damages.  That’s now available to spouses as well.  And again, the whole framework has changed such that same-sex entitlement gives rise to this option.

One thing I wanted to talk about briefly, Rick, was the precursor to the marriage definition which was the decision of the case in M&H, and that’s where the Court said “you can’t give rights to opposite sex common-law spouses that you don’t also give to same-sex common-law spouses”.

Rick Bickhram: You’re absolutely right here, Dave. You cannot discriminate on the basis of sexual orientation.  And I think that was (a) the decision in M&H, and (b) following that decision, the pith and substance behind much of our legislation that has revolved around that decision.

David Smith: Right, Rick. So you know, it’s going to be really interesting in our practice to see this new development take shape and to see these kind of cases come into our offices as lawyers.  And, of course, it’s going to, the bottom line here is it’s making available entitlements and remedies to a greater percentage of the population and that can only be a good thing.

Rick Bickhram: Absolutely. As society evolves, so will our laws to adapt with it.

David Smith: Thanks, Rick.

Rick Bickhram: Thank you Dave, and for all those listening out there, have a great day.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem

Posted on May 27^th, 2008 by Hull & Hull LLP

Megan Connolly: Hi, you’re listening to Episode #112 of Hull on Estates on Tuesday, May 27^th_, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Paul Trudelle: Hi, Megan, how are you today?

Megan Connolly: Hi, Paul. I’m fine.

Paul Trudelle: We should introduce ourselves. I’m Paul Trudelle.

Megan Connolly: And I’m Megan Connolly.

Paul Trudelle: And today we thought we would talk about an issue that comes up time and time again. It’s an issue that plagues a lot of estates. It arises from the fact that people don’t always organize their affairs as neatly and as nicely as we would like. It’s the issue of lost Wills and what you can do in the case of a lost Will, where there’s a Will that you know existed but doesn’t exist now; what are the options open to the estate trustee under that lost Will or the beneficiaries of the estate.

Megan Connolly: And as a starting point, I think the first question to ask is, why do you know it’s lost? Where is it supposed to be? Do you have a Mom who you know made a Will, and was keeping a copy of it in her bedside drawer and suddenly it’s gone?  Or do you just know generally, you think your Mom made a Will and it might be out there somewhere. I think the first thing to do is establishing whether it’s lost or whether somebody, some sort of professional has it, and you’re just not sure who.

Paul Trudelle: That’s right. And I think that’s a key issue is just finding that Will, steps taken to find a Will. Often people know of the lawyer for the deceased and they can make inquiries of that lawyer and that lawyer might help you down the right path to finding the Will he made, or she may have a copy of that Will or may give you some information as to what happened to the Will, whether it was given to the deceased, where it may have been kept, other steps you would take. I guess there’s a number of other steps to finding the Will. We can talk about those in another podcast. But, if you do know that there was a Will and you have some evidence of that and the Will no longer exists, there are options open to you. And you can prove that lost Will or prove a copy of that Will and then have that copy admitted to probate if you’re able to find out with some certainty of the fact that it did exist.

Megan Connolly: I think one of the first determinations that need to be made is, has the Will simply gone missing or did the testator intend to destroy it? This is an important distinction. I may make a Will, decide I don’t want it to be in effect any more and tear it up. That would be me intentionally destroying it. Likewise, I could have a Will. It could get destroyed by accident, such as in a fire or something. I guess technically it’s destroyed but that doesn’t mean I intended to revoke it.

Paul Trudelle: Right and I think that’s a key distinction, is the intention. The Succession Law Reform Act talks about revocation of a Will and how it’s revoked. One of the ways a Will can be revoked is “by burning, tearing or otherwise destroying it” and I’m reading this from the Section now, “by the testator or some person in his or her presence and by his or her direction” and the key word is “with the intention of revoking it”. So if it’s destroyed, and there is an intention to revoke, then the Will will be considered to be revoked. And with a lost Will, if you don’t know where the Will is, there are presumptions in law that apply and the Court will find that if a Will is lost, they will presume that it’s been revoked, that it’s been lost through destruction with the intention of revoking it. 

So that is a key presumption that comes into play where a Will is lost and that’s a presumption that will fly unless there’s some way of overcoming that presumption.  And maybe we can talk a bit how that presumption can be overcome and what cases will a Court find that a Will is lost, however there was no intention to revoke the Will.

Megan Connolly: So one of the issues that comes up is tracing where the Will last was.  Was the Will last in the possession of the testator or was the Will somewhere else, like in the lawyer’s office? And this sort of goes back to that presumption of whether or not the testator intended to revoke it.

Paul Trudelle: That’s right. If the Will was last in the possession of the testator, and it’s not found at the time of death, the presumption is that it was revoked. However, you can overcome that presumption or the presumption won’t apply if the Will wasn’t in the possession of the testator. So, like you said, if the Will was with a third party, was left with a lawyer or someone else and then was lost outside of the control of the testator, then the Court will not find that there was an intention to revoke because it’s not an act that the testator did to get rid of this Will. And we’ve seen cases where Wills are in the possession of lawyers and they can be destroyed through fire or accident or in the possession or left with third parties and can be lost or sometimes they’re lost after the person dies. So the Will is there when the person dies.  Subsequently, however, through the act of cleaning up the

Megan Connolly: the house

Paul Trudelle: the estate, cleaning up the house, usually it goes out with all of the

Megan Connolly: all the garbage

Paul Trudelle: all the old newspapers

Megan Connolly: and the original Will

Paul Trudelle: and the original Will goes too.

Megan Connolly: goes to the dumpster.

Paul Trudelle: Now again, in those cases sometimes there is an intention to revoke but it’s not the testator who wants to revoke it. So that sort of evidence is what the Court will want to hear with respect to where the Will was and how it came to be lost.  And it’s often a difficult question to answer and I always bug my kids about that, where did you lose it? But, you know, if you can lead some evidence as to where it was when it went missing, that will help.  And either the presumption won’t apply or depending on whether it was in the possession of the testator, it may be held that the presumption does apply and then you’ve got the problem with the lost Will and prior Wills may be in effect or there may be an intestacy.

Megan Connolly: Now something that does arise is whether or not a copy of the Will can be found.  And one of the things that happens is a lawyer drafts the Will, gives the original to the testator. The lawyer maintains a photocopy of it in his file, although not always.  And when the Will, the original suddenly disappears, people look to the lawyer for the copy. Now that can help but, of course, it doesn’t necessarily speak to the fact of whether or not the testator intended to destroy the original or whether it simply went missing.

Paul Trudelle: Right, no, it doesn’t address that. But it does address the fact of what the Will actually said. So if the other evidentiary issues with respect to the lost Will can be overcome, then the Court at least has something to propound, has something to declare as being valid or reflecting the wishes of the testator.  So the Court can prove a copy of the lost Will or in some cases, where a copy doesn’t exist, the Court may receive evidence as to what the Will actually said from those who may have read it or prepared it.

Megan Connolly: So if you have a situation where there is no copy of the Will and someone wants to prove it, what would they do? What sort of evidence do you think would be helpful?

Paul Trudelle: Well again, the evidence with respect to how it went missing is going to be helpful, you know, necessary.  If there is some evidence from let’s say a lawyer who prepared the Will who can say that, “Yes, I prepared the Will, this is what the instructions were, this is what the Will said”, this is…and you can give evidence as to the circumstances as to its execution because that’s something that’s going to have to be proved as well.  And then can give some evidence as to what happened afterwards, you know, “I held on to it, I put it into this file and when we moved offices it was lost”. That evidence is going to be very helpful.  Notes and records that the lawyer may have kept or his recollection or her recollection with respect to the Will will be relied upon by the Court.

Megan Connolly: Providing the lawyer is still living. If he’s not, then you’ve got another problem.

Paul Trudelle: If he’s not, then it’s yet another evidentiary problem and you may be able to prove the Will is lost but no one knows what that lost Will said, in which case, the Court won’t find in favour of that Will and you may have an intestacy. Perhaps we can spend a minute or two talking about the procedure for proving a lost Will.

Megan Connolly: Okay.

Paul Trudelle: And the procedure is set out in the Contentious Proceedings Rule 75 that relates to estates. And it’s Rule 75.02 and it provides that the validity and contents of a Will that has been lost or destroyed may be proved on an application and then it sets out two different streams. The first stream is by Affidavit evidence, without an appearance, so it can be done over the counter, where all persons who have a financial interest in the estate consent to the proof.

Megan Connolly: Right, so that’s potentially a live issue, consent, right there, as being the operative word.  And if the beneficiary is under the lost Will and the beneficiary is under the intestacy or a previous lawyer different to you likely won’t be doing it over the counter.

Paul Trudelle: Consent might be harder to get in those cases.   But in a lot of cases, though, the Will says that, “all my estate goes to my two children” and the two children are the intestate beneficiaries, so they’re prepared to consent to what the Will says.  No one else has a financial interest in the estate, so it can often go over the counter. 

In addition to that, if there is no consent, then it’s to be proved in a manner provided by the Court in an Order giving directions under Rule 75.06.  So if it is a contentious issue and the beneficiaries on intestacy are different than the beneficiaries under this lost Will, then the Court will set out a procedure for dealing with that and will set out, you know, what the issues are to be decided, allow the parties to go out and obtain the evidence of anybody who has knowledge of the Will or knowledge of what happened to the Will, and then provide for probably a trial of the issues down the road.

Megan Connolly: Well, of course, the down side is if this happens, it’ll probably be…well, potentially contentious and may be an expensive way of going about things.  So if you have an original Will, I guess, try not to lose it.

Paul Trudelle: I think that’s a very fair message.

Megan Connolly: Well I guess on that note…

Paul Trudelle: On that note, maybe we will wrap up. We want to thank you for listening and if you have any comments, we ask you to send us an e-mail at hull.lawyers@gmail.com.

Megan Connolly:  Or you can give us a call at 206-350-6636 or visit us on-line at estatelaw.hullandhull.com.

Paul Trudelle: That’s great. Thank you, Megan.

Megan Connolly: Thanks, Paul.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem

The article made me reflect on the different ways solicitors deal with persons born outside of marriage when drafting a Will. Since March 1978, persons born inside of marriage and outside of marriage are entitled to share equally in an intestacy estate. In a testate administration, unless a contrary intention is included in the Will, any words identifying a class of persons such as “issue” and “children” includes persons born outside of marriage.

However, a testator may want to exclude persons born outside of marriage from being considered as part of a gift class in order to remove the obligation on an executor to search for members of the gift class who were born outside of marriage.

Given the prevalence of common law relationships, to include a boilerplate clause excluding persons born outside of marriage from inclusion in the gift class may result in the unintentional disinheritance of grandchildren or great-grandchildren.  Any exclusion clause has to be considered carefully.

The upcoming LSUC CLE program, The Annotated Will, being held on February 21, 2008, discusses how to deal with difficult drafting issues. The two hour program is being chaired by Laura Kerr, Jennifer A. Pfuetzner, and Corina S. Weigl and promises to offer valuable advice on avoiding common drafting errors.

Have a nice day,

Diane Vieira

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on what to expect in the early stages of estate administration.

Posted on January 8^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #94 of our podcast on Tuesday, January 8^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull:  Hi Suzana.

Suzana Popovic-Montag:  Hi there Ian.

Ian Hull:  How are you doing?

Suzana Popovic-Montag:  I’m well, thank you.  How are you?

Ian Hull:  I’m good.  The holidays seem like a long time ago now.

Suzana Popovic-Montag:  Way too long.

Ian Hull:  They were way too short and it feels like they didn’t even happen.  But that’s okay.  We’re into a new year and having a great time moving through what is our mini series on what to expect, bringing some life to an estate administration.  So our last podcast we had some fun talking about this pre-probate stage.  And I think it’s worthwhile.  You were saying before as we were preparing for our podcast it would be worthwhile staying in this pre-probate stage because there are so many other issues that we could talk about before we get the fancy seal on the Court file.  And a lot of these issues are issues that can be dealt with on a homework basis, as you’ve described them and so have I.  So let’s talk about again where sort of we left off in our last podcast talking about what you called were testate estates or situations where there is a Will itself.  So let’s stay in that pre-probate framework and talk about that.

Suzana Popovic-Montag:  You know, one thing I wanted to mention, Ian, in terms of that is normally we have a situation where there’s a formal Will, a Will that’s been prepared by a lawyer . But that doesn’t mean that a hand-written Will prepared by the deceased and signed by him or her is not as equally a valid document.  And I know you talked about witness requirements and things like that during our last podcast.  But there are different requirements and rules that govern hand-written Wills, but they are equally effective at law.

Ian Hull:  Good point.  And we haven’t talked about that at all.  We’re sort of focusing on the conventional scenario but we can’t forget that less conventional scenario.  So why don’t we talk a bit about situations where you’re applying with a Will.  And you’ve got a fairly conventional scenario, or unconventional scenario - typewritten or hand-written.  One of the questions you’re going to be asked, and a bit of homework you can do, is get the details of who are all the estate trustees named in the Will that you have or you know about.  Are they alive?  Are they able?  Are they willing and competent to act?  Those kinds of details of where their addresses are, contact numbers and so forth.  This is just a good little homework exercise to follow through.

Suzana Popovic-Montag:  And another thing that you might want to consider is whether or not, and we’ve talked about these on previous podcasts, whether spouses are making elections under the Family Law Act for instance.  And if that’s the case, then there is case law that suggests that the Will is to be read as though that person has predeceased the deceased.  And so they won’t be entitled to be the executor of the estate and they won’t necessarily be entitled to gifts in the Will, as a general rule.

Ian Hull:  And you have, as usual, understated the importance of the case law because you did the Factum on the leading case on that issue.  And Reid vs Reid-Martin stands for that proposition that yes indeed, the surviving spouse has some problems acting as the estate trustee.

In terms of, you know, I guess another little detail point is you will need legal names of the estate trustees, addresses, occupations - you always have to note that in the probate application.  Other little details - you’ll want to get SIN numbers and dates of birth because sometimes they’re going to need that to open estate bank accounts.

Suzana Popovic-Montag:  I think you’ll also want to consider whether or not this is a situation where some of the named estate trustees may want to renounce.  And that’s the situation where someone decides I may be named, but I don’t necessarily want the job.  And in that case, they have to sign a formal document actually renouncing the appointment so that the other named estate trustees would have the authority to then continue with the administration.

Ian Hull:  Now that’s a very good point.  Alright, we’ve talked about situations where there is a Will.  Let’s turn now to situations where there is no Will, where we’ve got intestate estates, where you have to turn to the legislation in the different commonwealth jurisdictions that deal with situations where essentially the government tells you how the estate is going to be distributed.

Suzana Popovic-Montag:  And generally speaking, in those situations I think it’s usually the situation where you’re going to have that estate pass on to the next-of-kin, however that next-of-kin is actually defined.  And so the closest living relatives will be the ones who are, at first blush, going to be entitled to the estate.

Ian Hull:  So this is where I say you can do some of the most effective homework because this isn’t time you want to waste a lot with a professional across the table at hourly rates.  This is complex stuff that a professional is going to want to know almost to a level of detail that may seem almost irritating to the client.  And the reason why is, is that you used that term “next-of-kin”.  The term “next-of-kin” is a broadly defined term and one that…I mean, you’ve defined it perfectly…but one that has to be determined with great precision.  You have to make sure you don’t miss one possible next-of-kin or class of next-of-kin.  So to do that, you’re going to need some major information.

Suzana Popovic-Montag:  And you start, of course, with full legal names of all the family members that you know of, their addresses, their actual relationship to the deceased and their respective dates of birth.

Ian Hull:  And I will often just say to the client before they come to see me, listen, put together as best you can a family tree.  Show me where and when people were around and what sort of lineage, how it works.  So that you can start to get a bit of a visual as to what is going on, because the lawyer is going to be the one to fill in the blanks per se.  Now just because this is a bit of a complex area, at this point, let’s just talk a little bit about what happens when it’s not a straightforward situation.  Where the next-of-kin are a bit more distant.  Well, for example, you have situation where an elderly couple is married for 50 years, they have no children.  They have brothers and sisters but they never had kids.  And the brothers and sisters have kids.  So you’ve got different generations sort of swirling around.  And depending on who died first, and so on, who are the next-of-kin and so on.  What we’ll often do in situations were there is some uncertainty is we’ll hire a good trace or heir searcher to help us fill in the blanks.  And these people are fascinating.  Some of them they will go to cemeteries to chase down information, look at headstones, back it up and so forth.  And I guess what some…and some people might have heard of…are heir searchers who are not quite so clean in that sense that they usually will want a big piece of the action once they find these heirs, from the estate.  And what will happen is, is that for example if there is someone in England who is a beneficiary, a long lost beneficiary.  And so some of these heir search firms will take a fee, a fixed fee, a reasonable contingency fee or not so reasonable contingency fee.  We’ve seen some tremendous fees that come out, you know, which are just outrageous at some level.  But there are some really terrific heir searchers.  They’re needed.  They have a skill search that is unbelievable…what they can.

Suzana Popovic-Montag: It really is, Ian.  It really…I’m always astounded by the fact that they’ve got resources at their hands that we wouldn’t even necessarily expect.  And notwithstanding the fact that sometimes they can be very expensive, the truth is that estate trustees have a duty in these circumstances to locate family members, to locate the people who are entitled to the estate, to distribution of the estate.  And you don’t want a situation where you’ve possibly paid out the estate to the wrong family members.  And so it’s sort of a cost of doing business.  I know it sounds kind of crude but it is the term that we use when we say to the clients who are trying to administer these estates that it’s really, really important that this job be done properly.

Ian Hull:  And now, chasing down blood relatives is an expertise that these guys have.  The other expertise that we have, as lay people, that we need to employ in all this, is that you need to ascertain the nature of the relationships that the deceased entered into during his or her lifetime.  Not just the typical “I got a brother or a sister” or something like that, or a second cousin.  You want to make sure that we’ve nailed down all the relationships.  Say, twenty years ago, they had a relationship that you know about.  Maybe there were children out of that relationship you need to investigate.  There may be expanded relationships and situations where you have common-law spouses, where you have same sex spouses.  All of these matter for the different types of claims that can be made against the assets of the estate.  They may not be what we called “heirs at law” but they may be obvious claimants.  So it’s worth making the extra effort at the outset and ultimately if you don’t have the resources or the information, you can get your professionals to help you seek out these people and so forth.  But that is an important early step.

We don’t want to forget that, certainly in Canada, the nature of the relationship is crucial if you are a married spouse or you are not a married spouse as well.  Because you have special entitlements as a married spouse and you have other special entitlements if you’re a common-law spouse.  Different types of claims.  There are what we call the preferential share you would get if you were in a married spousal situation.  For the common-law, it’s different and the type of claim there is differently structured.  It’s structured by a dependants’ relief claim or something of that nature as opposed to what the statutes allow for as a preferential share in the claim.  So anyway, we don’t want to get in too deep on the claims side.  But it just shows you, it illustrates why this is important to chase down this information.  And we’re not suggesting this because we want to add work to the process or add layers of complexity.  We’re suggesting it because we want to solve problems at the outset.

Suzana Popovic-Montag:  And just to sort of tie this podcast up, Ian, I think another thing we want to keep in mind is the fact that we also have to determine whether or not there are any children born outside of the marriage.  And that matters for the same kinds of reasons in terms of the distributive share that people will be entitled to on an intestacy.

Ian Hull:  Absolutely.  I forgot about that.  So that’s very helpful.  Alright, so I think that’s a good start.  We will continue to work through this pre-probate stage and the homework and the preparation for our ultimate goal, and that is, to administer the perfect estate.  So we’re looking forward to many more talks and discussions about this in the year of ’08.  And the neat thing about ’08 is, we hope to hit 100 podcasts in ’08.  So that’s going to be an exciting day, probably not as exciting for everyone else, but you and I.  It will be a neat day to hit.  I don’t know how much celebration there will be involved.  It certainly won’t be champagne because we typically podcast early in the morning.  So we’ll try not to drink before noon in ’08.  That’s my new rule.

Suzana Popovic-Montag:  Well, thanks very much Ian.  And I do look forward to our next podcast.

Ian Hull:  Thanks a lot.  We’ll see you.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

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This week on Hull on Estate and Succession Planning, Ian and Suzana  talk about the first, pre-probate stages of administering an estate.