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.

Occasionally we get calls from people seeking a certificate of apostille or apostille stamp for a notarized document.  An apostille certificate verifies that the person who notarizes a document is a qualified notary and licensed to practice in the jurisdiction in question.  Usually, this kind of request comes from a lawyer, notary or government official in a foreign country who requires a document that will be used in that country for some legal purpose.

Unfortunately, the apostille system only applies in countries where the government has signed The Hague Apostille Convention Abolishing the Requirement of Legalization for Foreign Public Documents (1961). The United States is a signatory and the State Department – Bureau of Consular Affairs provides some further definitions of the functions of an apostille and where to get more information on signatories to the convention.

BUT – Canada is not a signatory.  Therefore, there is no apostille system in Canada.  Instead we have an equivalent process called “legalization and authentication” which normally means that the notarized document must be sent to the relevant Law Society or Society of Notaries where the governing body then verifies the signature of the lawyer or notary (as the case may be). An additional step is usually necessary where the consulate of the foreign country then also verifies the approval of the law society or notaries society, sometimes in conjunction with a Canadian government office.

It is very important to check with the embassy or consulate of the foreign country where you intend to use the document to determine what rules must be followed for the document to be accepted as proper documentation in that particular country. The rules do vary from country to country.  Therefore, it is prudent to call the person requesting the apostille, tell them that the process is not available in Canada because Canada is not a signatory to The Hague Apostille Convention and ask what they accept as an alternative. Sometimes they will require a regular notary stamp, then a certificate from the Notaries Society or Law Society that authenticates the notary/lawyer, then sometimes also a certificate from the relevant consulate authenticating all the previous documents.

There are services that will handle the legalization and authentication process for you.  Because it can be a complicated process you may wish to consider paying the fees and saving yourself the time and brain cells trying to figure out what to do.  A quick Google search reveals a number of services set up to help people with obtaining the equivalent of a certificate of apostille.  These businesses include:

Ottawa based Enterprise Legal which describes the process in greater detail along with the fees they charge for various services.

Document Services (Toronto) which has a convenient list of apostille countries along with information about the steps, costs and processing times.

Red Seal Notaries (with walk-in locations in Toronto, Mississauga, North York, Ottawa…and Vancouver!).  The Red Seal Website also has a list of Canadian locations for many embassies and consulates.

Another option, for those seeking a certificate of apostille for use in the State of Nevada (at least with respect to claiming a refund on taxes levied on casino winnings), is to use a local notary to handle the issue.  We thank a caller who persevered and emailed to tell us that this seemed to be the easiest approach under the circumstances – since she confirmed receipt of her tax refund, it appears to have worked.

One of the top 10 questions we get at LawOne is “How much will it cost me to hire a lawyer to do X, Y or Z?”  Sadly, there is no single magical price list for legal services. This is not necessarily a bad thing – it just means you need to take the extra step to clarify how and what you will be charged for the legal services you are requesting.  Each lawyer makes their own decisions about what they will charge for their services and whether they will offer flat fee or alternative billing models or charge an hourly rate.  Some lawyers do offer a free consultation (usually for a set period of time) but many will not do this over the phone.  Some lawyers also offer contingency fee billing arrangements which are common in personal injury cases.  In a contingency fee case  a lawyer waits to collect legal fees until the case has been resolved and the fee is a percentage of the settlement amount.

Many people are intimidated to ask about legal fees.  Don’t be.  Lawyers are service providers and they know that clients need this information to make decisions.  Lawyers will do their best to provide you with an accurate estimate of what it will cost to hire them.  However, you need to be aware that until a lawyer has had a chance to talk to you and review the facts and evidence related to your situation it will be difficult for him or her to tell you what it’s likely to cost you to resolve the matter.  Often lawyers will give you a range or they may ask for a retainer to assess the case and take some preliminary steps.  The amount of the retainer requested can range from $500 to $5000 or more depending on the complexity of the issue and what is at stake.

A retainer is a specified amount of money that you pay to a lawyer that is placed in the lawyer’s trust account and which the lawyer may then draw on as work is completed.  You will know when this occurs because before a lawyer may withdraw trust funds to pay their accounts they must provide a client with an invoice that itemizes the work done and the fees charged.  They must also provide you with an opportunity to “question the bill”.  Also, if your lawyer is able to complete the work for an amount of money less than the retainer the remainder is returned to you.

The bottom line is that it is best to be straightforward about legal fees.  If you are concerned or need confirmation on a charge or whether there is going to be departure from the original estimate…ask about it.  Your lawyer should not be offended or upset – they know you do not have unlimited resources and need certainty.  You can also take steps like asking your lawyer to contact you when you have used up a certain amount of your retainer, request that you be billed monthly or that you be advised if it becomes apparent that developments in your case are going to affect the original estimate for legal fees.

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.