At LawOne we get  occasional calls from relatives of deceased persons who feel they have been unjustly denied a bequest or benefit under a will.  If this is your situation it’s useful to consult a lawyer who practices in wills, estates and trusts law and has experience with estate litigation.  An experienced lawyer can tell you (probably by phone) whether you have grounds to challenge a will and what the result will likely obtain. Lawyer David Greig, a partner at Greig, Wilson & Rasmussen LLP, handles estate litigation cases. He takes these free inquiry calls regularly, and says the good news is that you may have some options under BC law if you have been left out of a relative’s will. David notes that,

In British Columbia the law allows the BC Supreme Court to intervene in some cases, and “rewrite” an unfair will.  If the deceased made a will which does not adequately provide for a spouse or child, the Court may be able to correct the will, and make an Order that compensates the forgotten or mistreated family member.

This law comes from a BC statute called the Wills Variation Act.  And while it does provide some options be aware that it also requires the challenger to take action within six (6) months.  Obtaining early advice is key.

In addition, David says it is important to understand that the relief provided under the Wills Variation Act is limited to spouses and children—it is of no assistance to grandchildren, nephews, sisters, or others.  Also, the law empowers the court to make adequate provision for the forgotten family member from the estate.  Therefore, if the deceased transferred his or her property away before death, or owned assets jointly with others (so that the assets never became part of the estate), the court may not be able to reach the assets under this law.  In such circumstances, the court may, instead, grant equitable relief (under “trust” law) to achieve a fair division.  It’s a complicated area of law, but easily explained by an experienced wills and estates lawyer when the facts are known.

The wills, trusts and estates lawyers at Greig, Wilson & Rasmussen LLP, have been assisting families with Wills Variation cases for over 15 years.  So, if you want to know if the treatment you received in the will of your late parent or spouse is “adequate” in law, call for a free consultation. You may find you can get the answers to your questions by phone, or in the first (free) interview.  You can contact David Greig or Mary-Jane Wilson at (604) 583-7917, or reach them through their website: www.gwrlawyers.com

Family law is one of those areas that touch on many different issues from child custody, division of assets, tax and estate planning.  The lawyers at  Henderson Heinrichs practice exclusively in the area of family law and one of the issues they see all the time is the affect a change in family status can have on a client’s will.

If you are getting married, separated or divorced, it’s time to think about your will. The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away.  – Joseph Broadhurst,  Henderson Heinrichs, Lawyers

We asked Joe to highlight some of the common issues you need to consider when you change your family status.  While Joe notes that every fact situation is unique and you should always consult a family lawyer qualified in your jurisdiction the following basic issues arise in BC:

If you are getting Married:

Wills in BC are governed by the Wills Act.  Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage.  If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act.  There are at least two disadvantages to this situation.  First, if you die without a will (also known as dying intestate) a court application is required to appoint an administrator for your estate.  This process is both more costly and time consuming than having your property distributed under a valid will.  Second, the Estate Administration Act, Part 10 provides set formulas for distributing your property which may not match your wishes or be suitable for your family situation.  So if you get married, make sure you revisit your will if you want your final wishes to be respected.

If you are getting Divorced:

Unlike getting married, getting divorced does not cancel your will.  However, it can change your will.  Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled.  The division of your estate can be complex and unpredictable if these portions of your will are cancelled.  If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.

If you are separated and planning on getting Divorced.

The process of getting divorced can often take some time (and in most cases takes at least a year).  Even if you are separated from your spouse and have started divorce proceedings, your will is still valid.  If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced.  Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.

If you have questions about how your change in status affects your will and what you can do to arrange your affairs to make sure your loved ones are protected you are welcome to call Joe Broadhurst or any of the lawyers at Henderson Heinrichs (604.669.3500) or visit their website at bcfamilylawyers.com.

People who have been injured in car accidents often ask us what they should be doing to protect their rights.  We asked  David Greig, a personal injury lawyer and a partner at Greig Wilson & Rasmussen LLP to share what he tells clients who come to him for help. David has been handling personal injury claims for over 25 years and had this to say about what you should do following an accident:

• Report the incident to the police and the insurance company promptly. Your failure to do so may compromise any claim you might have. It’s particularly important to do that immediately if you’re injured in a “hit and run.”
• Talk to a lawyer.  Many lawyers handle motor vehicle cases and most offer free consultations. David is one of them and if you want to talk to him, he can be reached at (604) 583-7917, or by email at (dgreig@gwrlawyers.com) dgreig (at) gwrlawyers (dot) com.  David frequently answers basic questions by phone and does not charge for that.
• Buy a cheap calendar, diary, or notebook from a local store.  Make notes about the incident. Record the names of any witnesses, and details of the collision.  Write down the names of doctors you’ve seen, and record your injuries, medications, and treatments. Keep it simple, but try to record the important stuff. If you’re still sore in 9 months, you won’t likely be able to remember the details.
• Follow the advice of your care-givers.  If the doctor prescribes medication, take it, or tell your doctor that you can’t or won’t.  If X-rays are ordered, get them done. If physiotherapy, chiropractic care, or RMT are recommended, go for it!  Your failure to undertake appropriate treatment can come back to haunt you.
• Finally, never, ever settle unless you’ve obtained some legal advice about the value of your claim. If you sign a release and take the money, you’re “finished”.  If you later discover that your case was worth three times what you settled for, it’s too late.

During his personal injury career David Greig notes he has had cases were clients have received reasonable offers from ICBC, and wanted to settle. In those cases he encouraged them to settle and in those circumstances, there were no legal fees and no delay.  But how do you tell if an offer is reasonable? Advice from an experienced personal injury lawyer is invaluable if you want to be sure that a settlement offer you receive from ICBC is reasonable and it’s even more critical if it turns out the offer is not what it should be given the circumstances. Talking to a personal injury lawyer, like David Greig, will give you peace of mind that you are being fairly compensated and if it turns out you’re not….you’ve got someone on your side to help you with further negotiations or taking your case to trial.

Recently a number of callers have asked about probating a will.  To help readers understand probate in general terms we asked Brian Loughlin of LawOne member firm RDM Lawyers to answer a few basic questions.  The results are below and if you have further questions you are welcome to contact Brian at your convenience.

LawOne:  What exactly is probate?

BL: Probate is a legal procedure where your Will is approved and the appointment of your executor is confirmed by the courts under BC legislation.  Your executor is the person responsible for making sure debts existing at the time of your death are settled and the wishes set out in your Will are carried out.

LawOne:  Is probate necessary in every case?

BL:  That depends on factors such as the simplicity of the estate, the character and value of the assets and the number of dependants in your Will.  It may be that your Will does not have to be probated, although very often, whether it is by choice or circumstance, a Will may end up being probated.

LawOne:  Why would an executor want a Will probated?

BL: There are a number of reasons. For example, if the executor has not been through the legal confirmation process (i.e., probate), third parties such as government agencies and banks can, and often do, refuse to recognize the executor’s authority until the courts have validated the Will.  This can slow down the distribution of assets to beneficiaries. Whenever a Deceased’s estate holds land a probate will be necessary. There are also some situations where applying to probate a Will may be advantageous.

LawOne:  Can you give an example?

BL:  In British Columbia the time period for commencing an action under the  Wills Variation Act (the “Act”) does not start to run until probate has been issued by the court.  Under s. 3 of the Act if a Deceased’s spouse or child seeks to challenge a Will under the provisions of the Act he or she must start their action within 6 months of the issue of probate (6 months from the date the court approves the Will and confirms the appointment of the executor). If you are an executor your job is to ensure the settlement of the debts of the deceased’s estate and the smooth distribution of assets to beneficiaries under the Will.  Therefore, it’s to your advantage to take steps to confirm the date after which a Will can no longer be challenged so as to avoid any liability attached to incorrect or unjust distribution of the assets under the Will.  Similarly, if you are a person seeking to challenge a Will, determining when probate was issued is critical to establishing whether you are within the limitation period set out in the Act.

LawOne:  Do you really need a lawyer to probate a Will?

BL:  No.  However, probating a Will can be complex and time consuming.  Most executors have other responsibilities and commitments that demand their time and attention.  In addition, an executor can become personally liable for certain obligations if the estate is not administered in accordance with our laws.  Having a lawyer take care of probate and advising with respect to the administration of the estate is one way to help minimize an executor’s personal liability.

Personal injury plaintiffs – stay off Facebook, Twitter, MySpace and other social networking sites.

Being in a car accident is news – bad news, but news nonetheless.  However, as the personal injury lawyers at Taylor & Blair caution it’s not news that should be shared on social media. The lawyers at LawOne member firm Taylor & Blair caution:

It is imperative to your claim that you do not post or have others post photos of you that could be wrongly interpreted on the internet or any social networking sites, such as Facebook, Twitter or MySpace.  ICBC has been known to pursue information and photos of personal injury claimants on these sites and to use it to the detriment of personal injury claimants.

Graham Taylor and Kevin Blair are quick to point clients to a recent article in The Canadian Press reviewing cases out of the Newfoundland and Ontario courts where personal injury claims were reduced or potentially jeopardized because evidence contradicting the extent and impact of injuries alleged by the plaintiffs was found on social networking sites like Facebook.

In the Newfoundland case the plaintiff, Dennis Terry, was claiming $1.3 million for his injuries.  However, after reviewing the plaintiff’s Facebook profile the judge reduced the claim to $40,000 for general damages and suffering because the profile content did not support the plaintiff’s claims.

Read the full judgement in Terry v. Mullawney & Terry v. Sinclair.

In the second situation, Ontario Superior Court Justice David Brown ruled that the defence was entitled to cross examine a plaintiff on the content of his postings on Facebook including content that was shielded by privacy controls and therefore not publicly available.  The judge rejected the plaintiff’s argument that Facebook privacy controls should operate to prevent the defendant’s lawyer accessing information in aid of his client’s case.  Instead the judge found that because the primary purpose of social networking sites (like Facebook) is to enable people to share information about their lives that this information may well be relevant to discrediting a plaintiff’s claims about their injuries and therefore was potentially relevant to ensuring a fair trial.  The court ruled that it was unfair to deny the defendant access to the material.

So, just because you have limited access to your profile on a social media platform or social networking site DO NOT assume that it will protect information displayed or transmitted through those sites from a court order.  The best policy is to let your lawyer handle any photos or other evidence regarding the nature of your injuries.

Need a lawyer to help you with your ICBC claim or have questions about your personal injury case?  Contact the lawyers at Taylor & Blair.

From time to time we get calls from women seeking help because they fear for their personal safety and/or the safety of their children.  In situations where violence has or continues to occur the first step is to get out.  If that means calling 911 for help or escaping to a womens shelter than that is what you do. You cannot resolve your problems or protect your children if you stay in an abusive (dangerous) environment.

What if you have no where to go?

Some women stay because they feel they have no where else to go.

Rather than deciding to tough it out (the statistics on death at the hands of a spouse or partner show this is not a good idea), if you are in an abusive relationship and need to get out you have options.  Shelternet is one.  As their website explains, Shelternet

was created to provide reliable and up-to-date information for abused women, their family, friends, and colleagues in Canada. Please browse the website or take a look through our special sections on topics such as understanding abuse, find a shelter, or abuse and children.

There is information on the Shelternet site designed for the specific needs of teens, children, family + friend (support information).

To access Shelternet in:  French, Spanish, Polish, Vietanamese, Chinese, Arabic, Farsi and Punjabi go to Shelternet Translations.

Alternatively you can contact the Transition House closest to where you live. The number one priority is your personal safety and that of your children.  You can consider your options after you are in safe place.

A Transition House provides:

• a safe place for you and your children
• food and other necessities
• temporary shelter
• support in getting financial, medical or legal help
• emotional help and counselling

The Legal Services Society Family Law Website also has information on dealing with abuse.

Some things you can do if the police won’t do anything

In some cases you may have already reported the matter to the police and have been told there is insufficient evidence to take any action against the person making the threats.  Obviously, if you are being threatened with violence, stalked or you are fearful because you are being harassed this is both extremely frightening and frustrating.

However, there are some steps you can take to empower and protect yourself.  The following list with links provides some ideas to get you started:

Suggestions and strategies to increase your safety if you feel intimidated, threatened or you think you are being stalked

Need protection from someone who has physically abused you or is threatening to do so?  Review detailed info on peace bonds, restraining orders and no contact orders or you can read the LSS Fact sheet (which is also translated) here Fact Sheet.

Further information and resources dealing with family situations, safety, abuse and help to stop family violence can be accessed through the Clicklaw web portal.