Deadman
Ottawa, ON
Male, 60
I help craft client estate plans; advise estate administrators and substitute decision-makers on their legal authority and responsibilities; and act as a mediator in estate disputes. In responding to your questions, I am providing legal information only; I am not giving legal advice and my response should not be construed as legal advice. Every situation depends on its own facts and you should therefore retain your own lawyer to obtain proper legal advice on your situation.
Valerie:
As with many legal issues, much depends on the jurisdiction whose laws apply here. In Canada, there are two ways to designate a beneficiary for life insurance. One can either indicate that person on the insurance contract when you apply for it or sign an insurance declaration at some later time. There are no witnessing formalities -- which makes it easier from an evidentiary viewpoint to either forge or destroy an insurance declaration (especially because one does not have to submit an insurance declaration to the insurance company in order for it to be legally valid).
If you know which insurance company insured your mother's life, you can contact the insurer to see if your mother had designated a beneficiary at the time she applied for insurance or sent the insurer an insurance declaration later on. (It is the last-made insurance declaration that governs.) If you or your grandchildren are designated as beneficiaries, the insurer will tell you so. Otherwise, privacy laws may prevent you from finding out who, if anyone, was so designated. (If there is no designation, the privacy laws would likewise preclude the insurer from telling you anything, unless you are the personal representative of your mother's estate.) If there is such a declaration that names you and/or her grandchildren, it would be up to your mother's husband to show that she later changed or revoked it.
By the way, in Canada an insurance declaration can be included in a will, so you would certainly want to look at your mother's will to see whether there is an insurance declaration in it.
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Sean:
The responsibility of the administrator of an estate, broadly stated, is to preserve and protect the estate assets. You did not mention whether your father left a will. If he did, the will might have something to say about who, besides the estate administrator, should be responsible for the upkeep of the house. Assuming there is no will or, if there is a will, nothing in it would impose an obligation on someone else -- if anyone, it would likely be a beneficiary who will inherit the house (but not the entire estate) -- to bear the maintenance costs related to the house, maintenance costs would be a proper expense of the estate. That said, here are a few more specific comments:
1. A more accurate answer would require an understanding of context. Specifically, what is the anticipated disposition of the house in the course of the estate administration? Is it going to be sold on the open market or is it going to be inherited by one or more of the beneficiaries (if there is a will) or next-of-kin (if there is no will). If there is to be a sale on the open market, lawn care and other maintenance costs intended to preserve the value of the property on a sale would be entirely proper. In the latter case, you have to consider who is going to benefit from those expenditures.
2. Having a written consent from every beneficiary or next-of-kin -- assuming each of them is of legal age to consent -- who would be adversely affected by a proposed expenditure will protect you against later complaints.
3. Any expenditure for which such consents are not forthcoming should be reasonable in the particular circumstances.
4. What do you mean by the phrase "work done"? If you are talking about repairs or work of cosmetic nature that would be necessary to ensure that a good price will be obtained in a sale of the property on the open market, that is fine. But if you are contemplating a major renovation -- that is, some form of capital improvement -- that is a different story. Absent some specific authorization in a will, it would be wrong to take significant estate funds to improve the property if that improvement will be to the benefit of one beneficiary -- whether yourself or someone else -- to the detriment of other beneficiaries.
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Stoney:
To address your question, you have to start with two fundamental principles underlying succession law. First, the essential nature of a will is an expression by its author (the "testator") regarding the persons to whom, or the purposes for which, one's estate is to be given or devoted. Second, the fiduciary duty of an executor or administrator -- let's call him or her the "personal representative" or "PR" -- who accepts that role is to preserve an estate in order to carry out the testator's instructions.
A document that, while properly executed in accordance the relevant legal formalities, directs the PR to do nothing more than destroy the value of the estate would not be considered to be a will. Its author would be considered to have died intestate, with the result that his or her property would be distributed to the persons entitled in accordance with the applicable statutory scheme of entitlement. The PR's duty would thus be owed to those persons, even though the testator did not intend any of them to benefit from the estate. It would be no defence for the PR to assert that in destroying the estate value he or she was simply carrying out the wishes of the testator. And it does not matter that the testator personally could have taken such destructive actions while living.
How far the principle of preserving an estate ought to extend is evidently a subject of some disagreement among estates lawyers. I was surprised to hear a senior estates lawyer I know (and one whose knowledge of this area of law I highly respect) state that if she were appointed as the PR for a client whose will directed that he or she be buried wearing extremely valuable items of jewellery, she would follow those wishes. Her rationale was that In the Province of Ontario (as in many other jurisdictions), the PR has "control of the body" and is entitled to direct the funeral, if any, and the burial, if any, in the manner he or she sees fit. (Surprisingly as it may sound, if the will contains any directions regarding these matters, the PR is not required to follow them.) It is on that principle that this estates lawyer's view was founded. I disagreed with her for the reasons indicated earlier. To be fair to my colleague, I am sure that if her client had no other assets of any value, she might act otherwise. That is because there is an important limitation governing the actions of the PR in connection with that control over the body; namely, to incur expenses to that end that are reasonable, having regard to the size of the estate and the person's station in life. (I was once approached by a woman who was estranged from her family and who was dead set -- pardon the pun -- against making a will that directed her estate to be distributed to any charities. She wanted me to draft a will for her that directed her PR -- and she asked if I would agree to take on that role -- to spend as much of her money as possible on her funeral and burial and to bury the rest of her cash and assets with her. I declined -- as, evidently, did a number of other estates lawyers whom she had previously approached for that purpose.)
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I am going to assume that by "writing" you mean document creation -- which in this day and age would normally be keyboarding or using voice-recognition technology, rather than handwriting.
How much time is spent on document creation and what kind of document creation will depend on whether you are focused on estate planning (in which case there will be, comparatively speaking, a great deal of creative drafting) or on estate administration (where there may be more time spent on document creation, but less creativity). Where you are retained to provide a legal opinion on an estate-related matter, there may be many hours of time spent in crafting it. If you have to conduct legal research in order to prepare your opinion, would you count those hours towards time spent?
Another feature of daily practice that makes it difficult to answer your question is e-mail. Lawyers in general spend a great deal of time in front of a computer screen, both sending and receiving e-mails. Depending on your workstyle, you may craft very detailed e-mails instead of composing letters. Does this count as "writing"
One observation I will make is that when I do not have my computer available to me for a particular day, I get very little work done. That would suggest that a very substantial part of my day is spent in document creation of one sort or another.
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Dear SOSO:
As I hope you will appreciate (and as I have repeated in response to a number of other questions), I can comment only about what the law of Ontario has to say on this issue.
Lawyers are taught early on in the law school course on wills and succession law the Latin maxim: "Nemo dat quod no habet." (This has nothing to do with clownfish, whales, turtles or evil dentists.) It means "No-one gives what he doesn't have." In the context of wills, the implication is that a direction in a testator's will to dispose of a particular asset that he or she doesn't own at the time of death will have no effect. The gift is said to "adeem" in that case.
However, there are three possible exceptions to the ademption: firstly, the will may indicate that the intended beneficiary should get a substitutionary gift; secondly, the courts may find a way to give the beneficiary something in place of the thing that the testator no longer owns; and thirdly, there are "anti-ademption" principles in the statutes of Ontario. To expand on the last two exceptions:
1. A court may determine that although the specific thing the testator (T) had when the will was made is no longer in his possession, it is traceable into something else that T does have at death. Suppose, for example, T owned a piece of farm property at the time the will was made and the will said it was to go to Jim, but between that time and the time of T's death, T transferred the farm property to his or her corporation in exchange for shares of that corporation. T no longer owns the farm property directly. A court might decide the "nemo dat" principle applies and declare that Jim is out of luck. Alternatively, it might declare that T's executor will have to find a way to cause the corporation to transfer the farm property to Jim. (This may well have serious income tax implications, but that is another story.) The court is more likely to reach the latter conclusion if T had already transferred the farm property to the corporation before the will was signed and simply neglected to mention that transfer to the lawyer drafting the will. As with so many things in law, everything will depend on the particular facts and on the particular judge's view. Courts will go through legal gymnastics and legerdemain in seeking to give effect to what they perceive the testator's intention to be. Sometimes, there are occasions when it is simply not possible to do that.
2. Ontario's Succession Law Reform Act has an anti-ademption rule that is applied in certain situations that pertain to bequests of personal property or devises of real property. I won't catalogue all of the situations, but here are a couple of noteworthy ones (which would be subject to a contrary intention set out in T's will):
(a) Suppose T's will gave farm property to Jim and the farm property was expropriated by a government authority, giving rise to T's entitlement to compensation for that expropriated property. If the compensation had not yet been paid to T by the time of T's death, Jim would be entitled to that compensation.
(b) Suppose T's new car was bequeathed to Jim but it was destroyed by a fire and T was entitled to insurance money to replace it. If the insurance money had not been paid to T before T's death, Jim would be entitled to that insurance money.
3. Ontario's Substitute Decisions Act has its own anti-ademption rule. It covers a situation where T has become mentally inapacitated and has a substitute decision-maker (S) who is managing T's property. Let's go back to the example where T's will gives his new car to Jim. Suppose that S decides that the car has to be sold to generate money to look after T's health care expenses. If that is the reason why T no longer owns the care at the time of T's death, Jim will be entitled to the sale proceeds of the car (without interest), unless T's will says otherwise.
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Well, I suppose that is an estate plan of sorts. But financial planners are just as strident in warning against the dangers of outliving your money. How much of a disaster that represents will depend on what standard of living you want to enjoy for the balance of your lifetime and what type of social safety net your government offers. Even if you could plan to arrange your financial affairs so that your money runs out precisely when your time runs out, this is hardly a plan if you expect to be survived by other persons to whom you owe a moral, if not legal, obligation to provide support. (On the other hand, perhaps you have died broke because during your lifetime you initiated a plan of gifting to, and creating trusts for, those very people.) And if you don't have any such obligations, why not plan to have something left at the time of your death to give to a charity of your choice?
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I am an Ontario lawyer. I can't speak knowledgeably about other countries' laws on wills, but I can point out one significant limitation this province's wills law has in relation to the wills laws of other provinces of Canada. When an error is made in complying with the formalities for signing a will -- most frequently, failing to ensure that the witnessing requirements are met -- there is nothing that an Ontario court can do to fix the problem. Courts in several other provinces have at their disposal a "substantial compliance" rule or a "judicial dispensation" authority that permits them to overlook a deficiency in the manner of execution if the court is satisfied that the document in question reflects the true testamentary intentions of the testator. The last substantial overhaul of Ontario's succession laws toook place 35 years ago. Our Succession Law Reform Act is due for another major upgrade and this would be one welcome addition.
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