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.

Being appointed the Executor of someone’s estate, while a sign of respect and trust, can also be a daunting task.  Many people do not know what the job entails and accept the appointment without realizing that if the job is not done correctly they can open themselves up to personal liability.  To help shed some light on the topic we asked Surrey Wills and Estates lawyer Mary-Jane Wilson, a Partner at Surrey law firm Grieg, Wilson & Rasmussen LLP to share an overview of some of the Executor’s primary duties.  That list includes:

• Locate the original will and all the documents relating to the estate
• Locate the Safety Deposit Box, obtain keys and make a list of the contents
• Review the deceased’s personal papers to determine all assets and liabilities
• Assemble, protect and insure all of the assets before Probate
  • What is Probate?
• Notify beneficiaries
• Prepare a Statement of Assets and Liabilities
• Complete any life insurance claims and collect proceeds on behalf of the estate
• Prepare a complete and detailed accounting
• Arrange for probate of the Will
• Review all Separation Agreements and Divorce orders
• Advertise for creditors if you are concerned about debts coming to light after you have settled the estate
• Re-direct mail, cancel subscriptions, notify credit card companies
• Distribute assets of the Estate per the terms of the Will after obtaining releases and consents
• Set up and administer Trusts as directed by the Will
• Prepare and file Income Tax Returns and obtain a Tax Clearance Certificate.

Read more about Executors…

Sounding like a bigger job than you thought? If you are concerned (and particularly if the Estate and the Will are complex) Mary-Jane recommends seeking proper professional advice both to make your job easier and to protect yourself from potential personal liability.  Wills and estates lawyers, like the team at Greig, Wilson & Rasmussen LLP, are experienced dealing with Executors and can advise you on all the things that need to be done to properly and efficiently settle an estate.

With summer vacationing comes the prospect of parties with friends and a significant rise in police vigilance concerning drinking and driving.  Paul Doroshenko, an experienced Vancouver criminal defence lawyer with Acumen Law Corporation, offers a timely warning for people who think a little mouthwash will protect them from the serious consequences of blowing over the legal limit if they are stopped at a roadside check and required to submit to a Breathalyzer test.  Based on his experience handling drinking and driving cases, Mr. Doroshenko has this to say:

“Often drivers who have had as little as one drink are concerned about the odour of liquor on their breath.  This is understandable as the odour may permit a police officer to compel them to blow at the roadside.  They may be under the legal limit, but because of flaws in the tester, they may be arrested for impaired driving after blowing at the roadside.  The question is will mouthwash assist someone who has been drinking to avoid being wrongfully arrested for over .08?

Most mouthwash contains substances to create a flavour and aroma, as well as antiseptics and alcohol.  Mouthwash may mask the odour of liquor.  The problem however, is the alcohol in mouthwash.  Although it is not consumed when using mouthwash, a minuscule amount of alcohol in a driver’s mouth will often generate very high readings on most breath-testing instruments.  In our own testing mouthwash has caused elevated readings even more then 20 minutes after last use.

If you use mouthwash to disguise an odour of liquor, you may succeed in hiding the smell.  But if you are required to blow into a roadside Breathalyser, your use of mouthwash may inadvertently lead to your arrest.  So it is generally not a good practice.”

For more information and help with criminal law issues you can contact Mr. Doroshenko’s law firm for criminal law defence assistance at 604.685.8889 (24hrs) or visit Acumen’s Vancouver criminal law website for information on the work he does for clients charged with drinking and driving and other criminal defence services.