The potential dangers of adding children as joint tenants

by | Apr 1, 2021 | Area of Expertise, Estate Litigation, James D Steele, Lawyers, Q&A, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

Many people like to add the name of a child, or children, to their home. The hope is to avoid probate fees on the death of the parent, and have the asset go directly to the children.

However, before you make this decision, be aware of the following potential danger:

  • First, if you later have a change of heart and do not wish to leave property to that child, it may be impossible to “undo” what you have done
  • Second, if the child who is now on title, attracts a judgement creditor, the judgement creditor may be entitled to go after the child’s share of the home

In short, sometimes circumstances cannot be controlled. Once you add a person to your title, you have given legal rights to that individual. Creditors will be entitled to rely on the legal position you create when you add a joint tenant.

James Steele’s preferred practise area is estate litigation. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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ICYMI: Understanding Employment Law Through COVID-19 Presented by Candice Grant

by | Mar 25, 2021 | Area of Expertise, Articles & Research, Candice D Grant, Construction, Covid-19

Understanding Employment Law Through COVID-19

Presented by Candice Grant

Are you uncertain about how to handle recent changes to employment law as a result of COVID-19?

Watch Candice D. Grant’s presentation to the Saskatoon Construction Association as she discusses the recent changes to the employment law landscape and what employers should consider under COVID-19.

Learn more about Candice

The “wills exception” to solicitor-client privilege

by | Mar 19, 2021 | Articles & Research, James D Steele, Lawyers, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

Solicitor-client privilege means communications between a lawyer and a client, are confidential. Thus, if a third party wants to see what a client told their lawyer when seeking advice, the court will not allow this.

However, there exists a “wills exception” to solicitor-client privilege. That is, when a will is disputed, and it is not clear what the deceased intended, the court can order that key records be released.

The basis for this exception is that if privilege was simply rigidly upheld, this would prevent a court from seeing evidence which could shed light on the true intention of a testator for their estate.

Thus, for those with concerns about whether a will is valid, a key source of evidence can sometimes be found in the lawyer’s notes which were created when a Will was made. Such solicitors’ records will often be very persuasive as they are made contemporaneously by lawyers trained to look for capacity, and who stood to receive nothing under the estate.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. Copyright 2018 by the author. All rights reserved. 

Learn more about James

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Visit Blog

Who Approves Compensation for the Executors?

by | Mar 19, 2021 | James D Steele, Lawyers, Q&A, Uncategorized, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

Typically, executor compensation will be governed in one of three ways:

  1. By a specific term in the Will, setting out a compensation percentage (these terms rarely exist however);
  2. By the agreement of the beneficiary (this is most common)
  3. If the beneficiary and executor do not agree, by a court order.

The vast majority of estates see beneficiaries consent to the compensation amount requested by the executor. The executor will first provide an accounting which sets out all of the transactions of the estate, so the beneficiaries can make sure they have no concerns. The executors will then often ask for a sum for compensation, and for their out of pocket expenses. Often, the beneficiaries will agree, and sign a consent.   

However, sometimes the beneficiaries feel that the compensation is too high for the work actually done. Or sometimes, there are minor (children) beneficiaries who are unable to provide capacitated consent. In these situations, the executor will need to go to court to seek court approval for their compensation. This approval should be given before the executor actually pays themselves anything.

How will the court fix the appropriate compensation:

There has grown to be a “rule of thumb” that an executor will receive a fee of 5% of the estate, as compensation for their work.

However, in estates which are very large, or, which were not specially complicated, courts routinely reduce compensation to below 5%. After all, 5% of a $2 million estate could be a huge amount of money, which may be too much compensation if the executor only dealt with a straightforward sale of farmland (often assisted by a lawyer).

In terms of the considerations that a court would examine, they include:

  1. The size of the estate;
  2. The care and responsibility required to administer the estate;
  3. The time occupied by the executor;
  4. The skill and ability displayed; and
  5. The success in administering the estate.

In short, before any executor “pays themselves” any fair compensation, be sure to first get written consent to the compensation from the affected beneficiaries. The last thing you want is to pay yourself a fee, and only then find there is a dispute, and perhaps you may even need to pay some of the money back to the estate.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Learn more about James

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Visit Blog

Binding Pre-trial Conferences in Family Law Proceedings

by | Feb 16, 2021 | Articles & Research, Family Law, Siobhan H Morgan

In October, 2020 the Queen’s Bench Rules were amended to enable parties in Family law proceedings to participate in “Binding Pre-trial Conferences.”

For background, a typical Pre-trial Conference is intended to facilitate the resolution of a family law matter, or if that is not possible, to manage the action until the matter is set down for trial. A Pre-trial is essentially a mandatory mediation session with a judge, where parties can exchange settlement offers to try to resolve matters to avoid a trial.

The difference being with a Binding Pre-trial Conference, however, if a negotiated settlement is not reached, that the presiding judge may step in and make a binding decision for the parties. The practical result is that the parties are able to avoid a trial if they cannot agree on a resolution.  The judge may determine that they are unable to make a binding decision on all of the issues, for whatever reason, and may direct that those issue(s) be set for trial.

It is important for the parties to Binding Pre-trial Conferences to be aware of the risks of submitting to such a process, as there are no rights to appeal the decision of the judge, except with leave from the Binding Pre-trial Conference Judge on an application. This means a party asks the Judge who made the decision to overturn their own decision. In addition, the parties are required to agreed in advance of the Binding Pre-trial that they will not make any collateral attack on any determination or decision made by the presiding judge.  The result is that the Binding Pre-trial Judge has broad powers with no judicial oversight.

Practical Steps – How can my Family Law matter proceed to a Binding Pre-trial Conference?

To begin, in order for a family law matter to be eligible for a Binding Pre-trial Conference, both parties must agree upon the process.

If agreement is reached, to obtain a Binding Pre-trial Conference, the following steps must be completed:

  1. The parties must submit a Joint Request for Binding Pre-trial Conference (Family) in Form 4-21.3 to the Court; and
  2. The parties must enter a Binding Pre-trial Conference Agreement (Family) in Form 4.31 4B.

The Binding Pre-trial Conference Agreement (Family) identifies the issues to be resolved, those issues the parties wish to be directed to a Binding Pre-trial Conference, and acknowledgments respecting the choice of process. The parties in a family law matter may limit the scope of issues for the Judge to determine.

A party to a Binding Pre-trial Conference (Family) Agreement must receive independent legal advice, and a Certificate confirming same is to be appended to the Agreement.

Parties submit Binding Pre-trial Briefs detailing the issues, the law that relates to the issues, and summaries of the evidence they rely upon, including medical and expert reports, financial documents, etc. and may include a settlement proposal.

Unlike Pre-trial Briefs, which are due 10 days prior, a Binding Pre-trial Brief is due to be filed with the Court 15 days prior to the date scheduled for the Binding Pre-trial Conference.

Binding Pre-trial Judge

The parties are informed of the Judge assigned to conduct the Binding Pre-trial Conference 30 days before the Binding Pre-trial Conference.

How do I get out of a Binding Pre-trial Conference?

If a party should wish to withdraw from a Binding Pre-trial Conference, they may do so at any time up 10 days before the start of the Binding Pre-trial Conference by serving a Notice of Withdrawal From Binding Pre-trial Conference in Form 4-21.7.

If a party should change their mind less than 10 days before the Binding Pre-trial Conference is scheduled to begin, they need to seek leave of the Court to withdraw their consent.

If consent is withdrawn, the Binding Pre-trial Conference simply proceeds as a Pre-trial Conference and if the parties’ settlement efforts are unsuccessful, the matter would proceed to trial.

PROS/CONS

The pros of a Binding Pre-trial Conference primarily relate to efficiency and cost. It will undoubtedly be more efficient and cost effective to have all of your family law issues dealt with at a Binding Pre-trial Conference rather than having to wait and pay for an expensive trial, when it can still take months for a decision to be rendered.

However, agreeing to submit to a Binding Pre-trial Conference is not without risk. The risks involved with a Binding Pre-trial Conference include that the Court will not have the opportunity to hear all of the evidence you would otherwise present at a trial, prior to making its determination.

In addition, as noted above, there is no right to appeal the decision of the Binding Pre-trial judge. This is a significant limitation to the remedies typically available to parties when third party arbiters are involved in determining matters.

A Binding Pre-trial Conference could be a useful process for parties in family law proceedings. I recommend you seek legal advice in relation to your matter.

Contacting a Lawyer on this Subject

Siobhan Morgan’s primary practice area is family law. For more information on this subject, contact Siobhan at 1 306 933 1308.

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Learn more about Siobhan

The Deadbeat Debtor – Is it Worth it?

by | Feb 8, 2021 | Articles & Research, Bankruptcy and Insolvency, Commercial Litigation, Debt Collection

All too often, creditors are forced to face the realization that their debtor cannot, or simply will not, pay. Whether it be because of a tenant, purchase of goods or contractor, the creditor is faced with very few avenues to recover the debt. The creditor is forced to consider taking ten cents on the dollar and drawn-out payment plan or bringing a formal court action.

While suing a defaulting debtor can lead to a relatively quick judgment as some defaulting debtors simply do not defend, the creditor then faces the realization that the judgment they have obtained is not worth the payment it is written on. The creditor has spent time and money, including legal fees, to obtain a judgment that they will never collect on. To avoid this pitfall, there are ways for creditors to attempt to act quickly to ensure they obtain some form of payment.

First, focussing specially on the commercial landlord, landlords can attempt to distrain on their tenant’s property. In doing so, the landlord must act quickly as one can only distrain on property that remains on the leased property. The landlord must also avoid the common pitfall of terminating the lease and then attempting to distrain, as once a lease is terminated, the landlord’s right to distrain goes by the wayside.

Creditors may also attempt to register a lien in order to protect their interests. While the most well know lien is the builders’ lien, there are other lesser-known processes provided for in The Woodmens’ Lien Act, The Commercial Liens Act and The Threshers’ Lien Act. Any creditor who may have lien rights should act quickly to ensure the funds that are being held back under the lien legislation are not disbursed.

If you are one of those unfortunate creditors who cannot utilize a lien to enforce the debt, and do not have a security interest in the debtor’s property, you may be forced to consider whether pursuing the debt is worth while. If the debtor is unwilling to agree to a payment plan or other resolution, you will be forced to gamble on whether you can enforce your judgment through The Enforcement of Money Judgments Act. In making that decision, there are a few considerations worth noting:

  1. Does the debtor have land and if so, how many mortgages or judgments are registered against it? It is important to note that pursuant to the Bankruptcy and Insolvency Act and The Saskatchewan Farm Security Act, the debtor is entitled to certain exemptions for their homestead or home-quarter, as the case may be.
  2. Does the debtor own any vehicles and if so, more than one?
  3. Have you run a judgment search? If there are several judgments already registered against a debtor, the chances of you collecting are reduced as there are more people claiming a piece of the pie.
  4. If the debtor is a corporation, are they up to date on their taxes and payroll remittances? CRA holds a super priority interest on a debtor’s asset for unpaid remittances. Furthermore, the failure to remit to CRA is usually a strong indicator of financial health, or lack thereof.

In short, it is usually helpful to determine ahead of time if there is any meaningful chance of enforcing your judgment. This will help you save time, money and frustration in chasing a dead beat debtor who will not, and probably cannot, pay.

Contacting a Lawyer on this Subject

Should you require more information on how to efficiently and cost-effectively recover against your debtors, please contact Travis K. Kusch at (306) 933-1373. 

Learn more about Travis

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