The question of what happens when adults do not have the requisite capacity to make financial, legal, or personal safety or healthcare decisions for themselves can arise in a variety of difficult situations, such as when a parent has advancing dementia, when a child with disabilities reaches the age of majority, or when an accident causes temporary or permanent cognitive deficiencies. If the adult does not have personal planning documents in place, like a power of attorney instrument or a representation agreement, there is a question of who can assist that person with those decisions that woul ..read more

After devoting time and money to carefully preparing Wills that reflect their wishes and comply with the formal legal requirements for Wills, individuals often then prepare letters of wishes intended to be flexible companion documents to their Wills to guide their executors. However, these seemingly simple letters of wishes have the potential to alter or even revoke carefully crafted Wills if they are not written clearly. Letters of wishes to executors are written for various reasons. For example, they may be used to provide guidance regarding the best means of managing the use of a family cot ..read more

In British Columbia, if a person dies leaving a Will which does not, in the Court’s view, make adequate provision for their spouse or children’s maintenance and support, the deceased’s family members can bring a claim in the BC Supreme Court under s.60 of the Wills, Estates and Succession Act, SBC 2009, c.13 (“WESA”), to vary the deceased’s Will. If such a claim is successful, the Court may order provision be made from the deceased’s estate for that family member, in a manner and amount that the Court considers adequate, just, and equitable in the circumstances. The determination of whether a ..read more

In the recent case of Mendres v. Ramsay1, the British Columbia Court of Appeal heard an appeal from an order made by a Justice of the Supreme Court of British Columbia, appointing two individuals as committees for a patient. The appellant contested the summary nature of the hearing, namely that the hearing Court was not able to properly decide on the appropriate choice for the committee on the basis of affidavit evidence alone. The appellant argued that the hearing Court ought to have ordered a hybrid trial with live cross-examination, or a full trial of the matter. The parties were members of ..read more

Can a discretionary trust benefit your children and shield the assets that you want to leave to them from being divided between your child and their spouse in the event of a relationship breakdown? The British Columbia Supreme Court recently examined trusts that did just this. In Cottrell v. Cottrell, 2022 BCSC 1607 (“Cottrell”), two parents, Robert and Patricia Muster, contributed assets to two trusts, a family trust and a joint partner trust (the “Muster Trusts”). The Muster Trusts benefited Robert and Patricia Muster and their adult children, including their married daughter, Joanne Cottrel ..read more

The Minister of Health recently made the Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying, SOR/2022-222 (the “Amending Regulations”) which will come into force on January 1, 2023. The Amending Regulations will impose a new array of procedural rules and reporting requirements relating to the provision of Medical Assistance in Dying (“MAiD”) in Canada. THE HISTORY OF MAiD In 2016, following the Supreme Court Canada’s landmark decision in Carter v. Canada (Attorney General), 2015 SCC 5, the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”) was amende ..read more

On August 14, 2020, Bill 21: Wills, Estates and Succession Amendment Act, 2020  (“Bill 21”) received Royal Assent in British Columbia. The bill amended the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) to allow for the remote witnessing of Wills, for the creation of electronic Wills, and for the digital signing of Wills. Our blog post outlining Bill 21 can be found here. As of today, the provisions of Bill 21 allowing for Wills in electronic form signed by electronic signature under WESA are in effect. “Electronic form” is defined as a form that: (a)    &n ..read more

Question: Is a Will Enough? THE (SHORT) ANSWER: Your Will only becomes effective on your death, meaning that the person named executor in your Will cannot deal with your assets while you are still alive. By contrast, there are documents that can be put in place to protect you and your assets during your lifetime. These latter documents are only effective while you are alive, and can be particularly helpful if you lose the mental capacity to make financial or health care decisions for yourself. One such document is a Power of Attorney, which authorizes one or more people to make decisions for y ..read more

Question: What Happens to My Things When I Die? THE (SHORT) ANSWER: What happens to your property when you die depends largely on how you own that property, the nature of that property, and whether you have a Will in place. For example, if you co-own property with another person as joint tenants, the property passes directly to that co-owner on your death (subject to some exceptions), and that co-owner becomes the sole owner of the property. If you have made a beneficiary designation on a registered account (e.g. a TFSA), the proceeds of that account pass directly to that beneficiary on your d ..read more

Question: What Happens to My Kids if My Spouse and I Both Die? THE (SHORT) ANSWER: Under BC’s Infants Act, if a child has no guardian, a director under the Child, Family and Community Service Act is the personal guardian of the child, and the Public Guardian and Trustee is the property guardian of the child. If a relative of the child or another person wishes to be the child’s guardian instead, that person must apply to the court to be appointed the child’s guardian. To avoid the default Infants Act regime applying, you can appoint one or more people to be the guardian(s) of your child upon yo ..read more