Effect of Marriage or 24 Months of Cohabitation on Your Will – Changes to the Wills Act

by | Sep 21, 2020 | Darlene N Wingerak, News, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

The law in Saskatchewan used to be that an existing will would be revoked when the will maker married or upon the will maker cohabiting in a spousal relationship continuously for two years, unless there was a declaration in the will that it was made in contemplation of marriage or cohabitation in a spousal relationship.

This meant that if an existing will of a person made prior to getting legally married or cohabiting in a spousal relationship did not have the required declaration stating that it was being made “in contemplation of marriage” or “in contemplation of cohabitation in a spousal relationship” their will would become invalid upon their marriage or cohabitation of 24 months.

This law has now changed. Effective March 16, 2020 these sections of The Wills Act were repealed. This means a will made prior to a marriage or cohabitation of 24 months that occurs on or after March 16, 2020 will remain valid until a new will is created. A declaration in the will that it is made in contemplation of marriage or cohabiting in a spousal relationship is no longer required for it to remain valid upon a marriage or cohabitation of 24 months occurring on or after March 16, 2020.

To be clear, this change is not retroactive. A will that was revoked because of a marriage or cohabitation of 24 months occurring prior to March 16, 2020 will remain revoked.

These changes were enacted concurrently with changes to The Marriage Act which allows family members of a person to apply to court to nullify a marriage if a person did not have the capacity to provide valid consent.

It is important to have a legally valid will and to review it periodically to ensure its provisions are appropriate having regard to your life circumstances at any given point in time. When a person dies without a legally valid will in place they will be found to have died “intestate” and the beneficiaries of their estate will be determined in accordance with The Intestate Succession Act.

It is especially important to have your estate planning documents reviewed when there has been a significant change in your life such as marriage or cohabitation of 24 months so you can make necessary updates. Starting a family, acquiring significant property with your spouse or others, and dealing with added complexities of succession planning if you are an owner of a business are other examples of significant changes in your life warranting a review and update your will.

The lawyers at Robertson Stromberg would be pleased to guide you through these changes and provide you with practical advice for your estate planning. For more information please contact Darlene N. Wingerak at [email protected]

This post is for information purposes only and should not be relied on for legal advice. Please contact Robertson Stromberg LLP for legal advice concerning your case.

 

Summary Judgment in Family Law Proceedings: Where Are We Now?

by | Sep 4, 2020 | Family Law, News, Sean M Sinclair

Summary Judgement in Family Law Proceedings: Where Are We Now? (CPD 259)

Join Sean Sinclair (Robertson Stromberg) for this informative discussion about summary judgment in family law proceedings. The “new Rules of Court” were introduced with considerable fanfare and with the potential to assist litigants seeking timely and cost-effective access to justice. Among the changes was the development of a summary judgment procedure to avoid the needless expense and time of a trial. In the family law realm, the summary judgment process was potentially a tool to allow families to obtain affordable judicial finality. At the now seven year mark of the introduction of the “new Rules”, this webinar will explore the reported cases and developments regarding summary judgment in family law proceedings with an eye on whether the summary judgment process has been successful in promoting timely and cost-effective access to justice.

September 15 (Online) | 12:00 – 1:00 PM

Qualifies for 1 CPD Hour

Register Here

Why Do I Need a Will?

by | Sep 3, 2020 | Articles & Research, Ben W Parsonson, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

A commonly asked question is why do I need a will? Your will sets out what is to happen to your assets (more commonly known as your estate) when you pass away. If you pass away without a will then your estate falls into what is called intestacy. An intestate estate puts more strain and stress on your loved ones as they will first have to all agree upon and determine who will administer the estate and then do so in the absence of a formal will.

Administering an intestate estate often involves more steps than one with a will and also makes the estate subject to The Intestate Succession Act, 2019 (the “Act”) for determining who stands to benefit from your estate. The Act not only sets out who is to benefit from your estate but also in what proportions, regardless of what you may have otherwise wanted. Having a proper will therefore not only makes it easier to obtain letters probate from the court but also control who is to benefit from your estate and in what way. Failure to have a properly drafted will can also lead to more conflict and expense as loved ones argue over what they believe your testamentary intentions were.

Having a properly drafted and executed will is beneficial for your loved ones to ensure that your intentions are met, and they are looked after. A properly done up will along with appropriate estate planning can also save your estate money, ultimately leaving more for your loved ones. It can also assist them sooner in ensuring your assets from your estate flow to them in a more expeditious manner.

For more information on having your will prepared or estate planning, please contact Ben Parsonson at [email protected] or at 306-933-1353.

Using home inspectors as insurance for a home purchase- Think again

by | Aug 31, 2020 | Articles & Research, Construction, Jared D Epp

For many people buying a new home is one of the most significant financial decisions they will make in their life. To safeguard this investment, many people choose to hire home inspectors. What happens when a home inspector misses something was the subject of a recent case in Saskatchewan known as Smith v Hawryliw.

In this case extensive mould and fire damage was discovered in a home months after the buyer had moved in. As the buyer had retained a home inspector prior to purchasing the property, the home inspector was sued. In defending the claim, the home inspector relied on a limitation of liability clause that was contained within the Home Inspection Agreement. This clause limited the home inspector’s liability to the amount paid by the buyer for the home inspector’s services. In arguing that this limitation clause should not apply, the buyer claimed that the home inspector had an obligation to bring the clause specifically to her attention before she signed the agreement. The judge, however, rejected this argument holding that the clause was written in plain language and was right above the buyer’s signature line on the agreement.

As the fee for a home inspection will often amount to only a few hundred dollars, any type of clause that limits a home inspector’s liability to the amount of its fee will significantly impact a buyer’s ability to recover costs expended to repair items that were missed during a home inspection. Given this, a home inspector should not typically be looked to as “insurance” on a home purchase. Rather, if a buyer has serious concerns or reservations about purchasing a home, especially with things like a home’s foundation or structure, other professionals (ex. engineers) should be looked to for assistance instead.

For more information, please contact Jared D. Epp at 306.933.1326 or email [email protected] 

 

I have a business idea, now what?

by | Aug 20, 2020 | Articles & Research, Small Business

I have a business idea… Now what?

So, you have an idea and are ready to launch a business. What do you do next? You can start by reading this article. Below are a few things to consider when you are looking to start your own business:

 

1) Determine how you want to structure your business:

There are several ways to structure a business. The three basic ways are though a sole proprietorship, a partnership, or a corporation. Each of these structures have different legal characteristics and are treated differently from a tax perspective. These structures are briefly described below:

Sole Proprietorship: A sole proprietorship exists whenever an individual engages in business in his or her own capacity. All benefits and liabilities of the business are also the benefits and liability of the sole proprietor. Therefore, the sole proprietor is personally responsible for all of the obligations of the business and is liable for any wrongdoing of the business. On the other hand, it is generally less costly to operate a sole proprietorship.

Partnership: A partnership is a form of business organization where multiple persons carry on a business in common with a view of profit. A partnership is not a legal entity separate from its partners and, generally, each partner in the firm is jointly liable with the other partners for all debts and liabilities of the firm. The legal relationship between partners is often governed by a partnership agreement.

In Saskatchewan, there is also the ability to create a limited partnership, which is a form of partnership that provides limited liability to certain partners. A limited partnership consists of one or more persons or entities who are “general partners” and one of more persons who are “limited partners”. Only the general partner is liable for the obligations of the partnership, and the limited partners have no liability beyond the amounts they contribute to capital. However, in exchange for this limited liability, the limited partners must be passive investors and cannot take part in the management of the business.

Corporation: A corporation is a legal entity separate from its shareholders and the individuals who operate the business of the corporation. Some advantages of operating a business through a corporation include limited liability to shareholders (in other words, the shareholders are not liable for the obligations of the corporation) and advantageous tax treatment.

The above is only a brief overview of these business structures. Before making a decision on which structure is best, it is advisable that prospective business owners discuss each structure in detail with their legal and tax advisors.

 

2) Reserve and register the business name:

If you wish to operate your business under a business name, there is a specific process that must be followed to search the name (to ensure another business is not using the same or similar name), reserve the name, and register the name in the appropriate public registry.

 

3) Obtain a Provincial Sales Tax (PST) Number

All business operating in Saskatchewan must be registered with the Ministry of Finance to obtain a PST number. PST must be collected and remitted by a vendor of a retail sale of certain property or certain services in Saskatchewan, and failure to do so may result in a large tax bill along with interest and penalty payments.

 

4) Register with the Saskatchewan Worker’s Compensation Board (the “WCB”)

All employers engaged in any industry in Saskatchewan (except farming/ranching or any other prescribed industries) who hire workers an a regular, casual or contractual basis must register with the WCB. Employers in Saskatchewan who are subject to workers’ compensation legislation must report work-related injuries that require medical attention to the WCB and pay assessed amounts to the WCB.

 

5) Review land use and zoning bylaws

Municipalities and cities may enact bylaws which regulate the development and use of land within those municipalities or cities. Any business owner operating in Saskatchewan should ensure that his or her business conforms to any land use or zoning bylaws within the applicable municipality or city.

 

6) Obtain the appropriate business licence

Persons operating a commercial or industrial business will need to obtain a commercial business license and/or a non-resident business license in the city/municipality in which they operate.

Starting your own business can be daunting, but the legal advisors at Robertson Stromberg LLP can help you navigate through these steps and get your business off to a great start.

 

For more information, please contact Jon Ponath at 306.933.1365 or [email protected]

Am I in a Common-Law Relationship?

by | Aug 17, 2020 | Articles & Research, Family Law

In Saskatchewan, The Family Property Act and The Family Maintenance Act defines “spouse” as either two persons who are legally married or have been cohabiting with the other person as spouses continuously for at least two years (often referred to as a “common-law relationship”). This means that once you have cohabitated with another person continuously for at least two years, the same rights arise under these acts as couples who are legally married. Meeting the above definition of spouse triggers certain rights and obligations with respect to property owned both together and individually as well as support.

Unlike legal marriage where you have a definite ‘start’ date, the date when people commence cohabitation is dependant on several factors and may not necessarily be when one or both persons think. There are also many misconceptions about preventing the ‘cohabitation clock’ from starting which includes: not changing your address, filing a tax return as single, keeping separate bank accounts, owing/maintaining separate homes or paying the other person rent.

There are several factors that the Court will consider when determining if two people are cohabitating as spouses and when it commenced. These include:

  • Do they live together?
  • What are the sleeping arrangements?
  • Do they have an exclusive relationship with one another?
  • Do they eat meals together?
  • What are their feelings toward one another?
  • What is the conduct between them about:

    • Preparation of meals;
    • Washing of clothes;
    • Shopping for groceries; and
    • Household upkeep and maintenance.
  • Do they participate together or separately in activities, including but not limited to, work functions, weddings, family gatherings, etc.
  • How do their neighbours, co-workers, friends, families view the couple?
  • What are their financial arrangements or attitudes?

The above list is not exhaustive and no factor is determinative. Courts will still examine the relationship as a whole to make their determination. It is also important to note that a temporary break-up or separation does not necessarily restart the ‘cohabitation clock’.

Couples can enter into a Cohabitation Agreement which is a contract made between them allowing them to protect their individual assets and set out what rights and responsibilities each person has should the relationship end in the future. A Cohabitation Agreement can be tailored to a couple’s specific needs and requires each person receives independent legal advice with respect to the Agreement.

If you have further questions about your rights and obligations under The Family Property Act and Family Maintenance Act, the definition of ‘spouse’, cohabitation, or Cohabitation Agreements, Robertson Stromberg’s team of Family Law lawyers would be happy to assist you.

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