Ask the Author: Lynne Butler
Answered Questions (8)
Lynne Butler
Well, that's a confrontational beginning to a conversation. There is no need to go into personal insults such as saying "if you're a real lawyer". And I'd hardly classify a comment about your work as a "claim". Take a deep breath. I see I touched a nerve by saying your book was self-published.
If I make a mistake, I have no problem admitting it. But was I mistaken? Before I posted my review, I did google the publisher. Now that I see your question, I've googled it again. It describes itself as a sort of hybrid between traditional publishing and self-publishing. In my view, the vital difference between a traditional publisher and any other sort of publishing is the role of the editors and publishers who vet each manuscript based on merit. On my reading of the Next Chapter Publishing website, any author can send in anything to be published, and can pay for services like editing if they want to. How is that not self-publishing?
To me, your book screamed "self-published" by virtue of its lack of editing. When I googled the publisher, it appeared to me to be a self-publishing site. I can't change my mind on either of those things based on what I see and read.
I'm sorry I didn't like your book, but I'm just one person. Plenty of other reviewers thought it was fine.
If I make a mistake, I have no problem admitting it. But was I mistaken? Before I posted my review, I did google the publisher. Now that I see your question, I've googled it again. It describes itself as a sort of hybrid between traditional publishing and self-publishing. In my view, the vital difference between a traditional publisher and any other sort of publishing is the role of the editors and publishers who vet each manuscript based on merit. On my reading of the Next Chapter Publishing website, any author can send in anything to be published, and can pay for services like editing if they want to. How is that not self-publishing?
To me, your book screamed "self-published" by virtue of its lack of editing. When I googled the publisher, it appeared to me to be a self-publishing site. I can't change my mind on either of those things based on what I see and read.
I'm sorry I didn't like your book, but I'm just one person. Plenty of other reviewers thought it was fine.
Lynne Butler
Hi Dawn,
Most law clerks and legal assistants are commissioners for oaths. This is a government registration that is renewable every few years. The expiry date you're referring to will be the deadline for that law clerk to renew his or her commission. This does not affect your father's will at all. The law clerk was validly registered at the time of the witnessing and that's all that matters.
You are discussing both probate and POA in the same question, so I'm not sure what "originals" the bank wants. The original will? The original POA? I started off assuming that your father had passed away but when you said you are POA it became contradictory.
Are you the executor named in the will? If so, and if your father is now deceased, the lawyer should be releasing the will to you. You don't say why they refuse to co-operate so I'm left not knowing really what you asked them for or why they refused you, so I honestly can't make any sort of helpful remarks on that part.
Lynne
Most law clerks and legal assistants are commissioners for oaths. This is a government registration that is renewable every few years. The expiry date you're referring to will be the deadline for that law clerk to renew his or her commission. This does not affect your father's will at all. The law clerk was validly registered at the time of the witnessing and that's all that matters.
You are discussing both probate and POA in the same question, so I'm not sure what "originals" the bank wants. The original will? The original POA? I started off assuming that your father had passed away but when you said you are POA it became contradictory.
Are you the executor named in the will? If so, and if your father is now deceased, the lawyer should be releasing the will to you. You don't say why they refuse to co-operate so I'm left not knowing really what you asked them for or why they refused you, so I honestly can't make any sort of helpful remarks on that part.
Lynne
Lynne Butler
I have no idea what's in the future for this lawyer, or any lawyer. I can tell you that in my province, all the lawyers are still working and are still busy. Everyone has modified their ways of doing things to allow for social distancing, but we're all still going strong.
It sounds as if you're worried that the lawyer will go out of business and you'll lose your retainer. However, the money you give as a retainer does not go into the lawyer's bank account to be used for his general expenses. It goes into a trust account and can only be used on your behalf or to pay the bills he charges to you. We have very strict rules about use of trust funds.
It's possible that the lawyer might have financial troubles and decide to keep your money inappropriately. It does happen from time to time. But that would only happen if the lawyer never plans to practice law again because he would be disbarred. Like I said it happens, but it surely doesn't happen very often.
Honestly, I can't add anything about waiting on your bank loan. I have no idea what other sources of funding or income you have or expenses you have so I have absolutely no context for answering that question.
I assume that by "zoom court" you are asking about whether the courts are operating remotely. That may not be your question but since I have to guess, I'll answer the one I think is being asked. Under normal circumstances, some court appearances can be made remotely. However, that is only in normal circumstances where there is a judge, a clerk, lawyers, and other people available. In these current times, the courts are closed for all but emergency matters. If your dispute needs court assistance, it will have to wait.
Lynne
It sounds as if you're worried that the lawyer will go out of business and you'll lose your retainer. However, the money you give as a retainer does not go into the lawyer's bank account to be used for his general expenses. It goes into a trust account and can only be used on your behalf or to pay the bills he charges to you. We have very strict rules about use of trust funds.
It's possible that the lawyer might have financial troubles and decide to keep your money inappropriately. It does happen from time to time. But that would only happen if the lawyer never plans to practice law again because he would be disbarred. Like I said it happens, but it surely doesn't happen very often.
Honestly, I can't add anything about waiting on your bank loan. I have no idea what other sources of funding or income you have or expenses you have so I have absolutely no context for answering that question.
I assume that by "zoom court" you are asking about whether the courts are operating remotely. That may not be your question but since I have to guess, I'll answer the one I think is being asked. Under normal circumstances, some court appearances can be made remotely. However, that is only in normal circumstances where there is a judge, a clerk, lawyers, and other people available. In these current times, the courts are closed for all but emergency matters. If your dispute needs court assistance, it will have to wait.
Lynne
Lynne Butler
Hi Dawn,
Have you been told that you are entitled to receive a share of the residue of the estate? If you are not a residuary beneficiary, you are not entitled to a copy of the will, so it will be a long wait.
If you have a lawyer on retainer, you should be able to ask questions of him or her about things like where to file your Notice of Objection. I would suggest that you file a Notice of Objection in the courthouse nearest where the deceased lived. If that was Kitchener, then yes file one there.
I'm assuming that the brother you mentioned is the executor of the estate. In order to get the bank accounts, you do not go by way of subpoena. What you need to do is demand an executor's accounting. Assuming that you are in fact a residuary beneficiary, you are entitled to ask for that accounting at any time during the estate administration. It will include more than bank statements. It will have a complete inventory of the estate on the day the deceased passed away as well as values on everything from bank accounts to real estate to household items.
You've said that you've talked with many lawyers. Is that because you don't like the answers you're getting from them? Or you just haven't found one you want to work with? Going from one lawyer to another like that is a terrible waste of time and money. Try to find one who knows a lot about estate law. To do that, call up a lawyer or a firm and without saying what you are calling about, ask what areas of law the lawyer prefers to work in. If wills and estates is not first or second on their list, get someone else.
When you have a lawyer on retainer, you don't pay them to "wait". They can only bill you for work that they do. If they are not doing anything but waiting, then of course you are not paying them. On the other hand, if they are calling the probate court, doing searches, or contacting the executor's lawyer to try to find out something, then you'll pay for their time.
Now, having said all that, a year after a death is long enough for something substantial to have happened in an estate. Sometimes it does take a long time to get a complex estate organized and valuated so that probate can go ahead. But this is too long, in my opinion. If there is something causing a delay and you are a beneficiary, they should have told you what is holding things up.
Pick a lawyer you can work with. You should feel that the lawyer is fully engaged in your case. Make a plan with that lawyer and move ahead with it.
Lynne
Have you been told that you are entitled to receive a share of the residue of the estate? If you are not a residuary beneficiary, you are not entitled to a copy of the will, so it will be a long wait.
If you have a lawyer on retainer, you should be able to ask questions of him or her about things like where to file your Notice of Objection. I would suggest that you file a Notice of Objection in the courthouse nearest where the deceased lived. If that was Kitchener, then yes file one there.
I'm assuming that the brother you mentioned is the executor of the estate. In order to get the bank accounts, you do not go by way of subpoena. What you need to do is demand an executor's accounting. Assuming that you are in fact a residuary beneficiary, you are entitled to ask for that accounting at any time during the estate administration. It will include more than bank statements. It will have a complete inventory of the estate on the day the deceased passed away as well as values on everything from bank accounts to real estate to household items.
You've said that you've talked with many lawyers. Is that because you don't like the answers you're getting from them? Or you just haven't found one you want to work with? Going from one lawyer to another like that is a terrible waste of time and money. Try to find one who knows a lot about estate law. To do that, call up a lawyer or a firm and without saying what you are calling about, ask what areas of law the lawyer prefers to work in. If wills and estates is not first or second on their list, get someone else.
When you have a lawyer on retainer, you don't pay them to "wait". They can only bill you for work that they do. If they are not doing anything but waiting, then of course you are not paying them. On the other hand, if they are calling the probate court, doing searches, or contacting the executor's lawyer to try to find out something, then you'll pay for their time.
Now, having said all that, a year after a death is long enough for something substantial to have happened in an estate. Sometimes it does take a long time to get a complex estate organized and valuated so that probate can go ahead. But this is too long, in my opinion. If there is something causing a delay and you are a beneficiary, they should have told you what is holding things up.
Pick a lawyer you can work with. You should feel that the lawyer is fully engaged in your case. Make a plan with that lawyer and move ahead with it.
Lynne
Lynne Butler
I don't know where you live, so I can only answer this question based on general estate law principles. In Canada, you cannot challenge an estate based simply on the fact that you were left out of a will that you thought you should be in. If you live in BC, the rules are different, but otherwise this is the law that exists.
This means that if you want to contest the will, you have to challenge one of the following:
- your mother's mental ability to make a will, including understanding what she owns, remembering who is in her family, understanding the consequences of the choices she is making, and other similar factors; or
- your mother's freedom to make the will she wanted without interference from other people who were influencing her (this is known as "undue influence");
- your mother's failure to understand and appreciate the contents of her will.
From what you've said about lies being told to get your mother to take you out of the will, I tend to think you have a case based on undue influence. You also said that your mother had been acting differently for the last few years, and this might be an indication of early signs of dementia, which might impact her capacity to make a will.
You don't have to choose between two ways to challenge the will; if your facts fit both situations, you can go on both of them.
I won't sugar-coat things, though. This kind of lawsuit is emotionally draining because it involves a lot of finger-pointing and blaming and you have to keep re-living your Mom's worst moments. However, that's the only way to force a change on an executor.
With respect to getting a copy of the will, if you are not named in it, you are not automatically entitled to have a copy (even though the deceased was your mother). I have two suggestions for getting a copy. One is to check at the probate court to see if your brother has filed for probate. If so, it's now a matter of public record and you can get a copy for a couple of dollars. If it is too early in the proceedings for that, so much the better. You should hire a lawyer who will write to the executor and ask for a copy. When the lawyer makes this demand, he or she should state that you are considering suing under the will. This is important because if he still refuses to give you one, and you have to get the court to force him to give you one, the court will award costs against him for refusing unreasonably. This means he'd have to pay part of your lawyer's fees.
Where possible, I try to get clients and their families to mediate their disputes and come to a solution without using the courts. However, I would not recommend that when your brother sounds violent towards you. You would not feel safe and the session would be too hard on you, not to mention being unproductive.
This leaves the courts as your last resort. If you hire a lawyer, try to get one who practices only in wills and estates law, or at least a significant portion of his or her practice is in estate law. You do not want someone who dabbles.
If you are serious about contesting the will, make sure you file a caveat at the court as soon as possible. This will prevent the executor from probating the will and distributing the assets before your concerns are heard by the court.
If you want to know more about what it's like to contest a will, check out my book called "Contesting a Will Without a Lawyer". Even people who do have lawyers tell me it fills in a lot of blanks for them. I wish you the best of luck.
Lynne
This means that if you want to contest the will, you have to challenge one of the following:
- your mother's mental ability to make a will, including understanding what she owns, remembering who is in her family, understanding the consequences of the choices she is making, and other similar factors; or
- your mother's freedom to make the will she wanted without interference from other people who were influencing her (this is known as "undue influence");
- your mother's failure to understand and appreciate the contents of her will.
From what you've said about lies being told to get your mother to take you out of the will, I tend to think you have a case based on undue influence. You also said that your mother had been acting differently for the last few years, and this might be an indication of early signs of dementia, which might impact her capacity to make a will.
You don't have to choose between two ways to challenge the will; if your facts fit both situations, you can go on both of them.
I won't sugar-coat things, though. This kind of lawsuit is emotionally draining because it involves a lot of finger-pointing and blaming and you have to keep re-living your Mom's worst moments. However, that's the only way to force a change on an executor.
With respect to getting a copy of the will, if you are not named in it, you are not automatically entitled to have a copy (even though the deceased was your mother). I have two suggestions for getting a copy. One is to check at the probate court to see if your brother has filed for probate. If so, it's now a matter of public record and you can get a copy for a couple of dollars. If it is too early in the proceedings for that, so much the better. You should hire a lawyer who will write to the executor and ask for a copy. When the lawyer makes this demand, he or she should state that you are considering suing under the will. This is important because if he still refuses to give you one, and you have to get the court to force him to give you one, the court will award costs against him for refusing unreasonably. This means he'd have to pay part of your lawyer's fees.
Where possible, I try to get clients and their families to mediate their disputes and come to a solution without using the courts. However, I would not recommend that when your brother sounds violent towards you. You would not feel safe and the session would be too hard on you, not to mention being unproductive.
This leaves the courts as your last resort. If you hire a lawyer, try to get one who practices only in wills and estates law, or at least a significant portion of his or her practice is in estate law. You do not want someone who dabbles.
If you are serious about contesting the will, make sure you file a caveat at the court as soon as possible. This will prevent the executor from probating the will and distributing the assets before your concerns are heard by the court.
If you want to know more about what it's like to contest a will, check out my book called "Contesting a Will Without a Lawyer". Even people who do have lawyers tell me it fills in a lot of blanks for them. I wish you the best of luck.
Lynne
Lynne Butler
You're in a position that most parents don't like, that is, you do not have legal control over matters that deal with your children.
You as a parent have no rights of any kind to control this situation. The grandparents were appointed as trustees and as such they are the ones who represent the children's interests. I know it seems as though you should be able to mandate what happens, when it happens, etc. but you do not.
Because the funds were left in an insurance policy and not a will, there will not be provisions that instruct the trustees about such things as using the money for education or maintenance of the children. An insurance policy provides valuable funds but it would have made a lot more sense if your spouse had left the funds to her estate and used the will to determine how the money could be used. As it is, the trustees do not have to pay anything to the children until each child reaches legal age, at which the child gets the full amount of the policy plus whatever it has accrued while invested.
The trustees are bound by your province's Trustee Act. This sets out the scenario in which the trustees may not use the funds for their own use but must only use the funds for the best interest of the children within the parameters of the policy.
If you have concerns (and evidence) that the funds are being misused or spent on someone other than the children, you can advocate on behalf of the children to have the trustees removed. Lack of contact is not enough to remove someone. This is pretty drastic and involves a lawsuit in which a judge would be asked to remove the trustees and have someone else put in charge. Most likely that new trustee would be the Office of the Public Trustee in your province.
Perhaps you could ask them to provide you with a statement once a year on the basis that you want to do your own financial planning for things like future education, etc. You are not in a position to demand a statement, but the trustees may be willing to provide it just to ensure that everything stays on an even keel.
Lynne
You as a parent have no rights of any kind to control this situation. The grandparents were appointed as trustees and as such they are the ones who represent the children's interests. I know it seems as though you should be able to mandate what happens, when it happens, etc. but you do not.
Because the funds were left in an insurance policy and not a will, there will not be provisions that instruct the trustees about such things as using the money for education or maintenance of the children. An insurance policy provides valuable funds but it would have made a lot more sense if your spouse had left the funds to her estate and used the will to determine how the money could be used. As it is, the trustees do not have to pay anything to the children until each child reaches legal age, at which the child gets the full amount of the policy plus whatever it has accrued while invested.
The trustees are bound by your province's Trustee Act. This sets out the scenario in which the trustees may not use the funds for their own use but must only use the funds for the best interest of the children within the parameters of the policy.
If you have concerns (and evidence) that the funds are being misused or spent on someone other than the children, you can advocate on behalf of the children to have the trustees removed. Lack of contact is not enough to remove someone. This is pretty drastic and involves a lawsuit in which a judge would be asked to remove the trustees and have someone else put in charge. Most likely that new trustee would be the Office of the Public Trustee in your province.
Perhaps you could ask them to provide you with a statement once a year on the basis that you want to do your own financial planning for things like future education, etc. You are not in a position to demand a statement, but the trustees may be willing to provide it just to ensure that everything stays on an even keel.
Lynne
Lynne Butler
Hi Lloyd,
If your parents only own one property, it's their principal residence. This means they pay no capital gains tax on it when they pass away. The only tax you should run into at the time your parents' house passes to you is the provincial probate tax (about 1.5%).
Going forward, if you own two properties, only one of them is your principal residence. Therefore only one is free of potential capital gains tax. If you keep your parents' house and later sell it, you will pay capital gains tax on it if it has increased in value during the time you owned it. Assuming that your own home in NL is your principal residence, you will not pay capital gains tax on it when you sell.
Owning one house is not a tax issue. Once you own a second one though, things get more complicated.
Hope this helps.
Lynne
If your parents only own one property, it's their principal residence. This means they pay no capital gains tax on it when they pass away. The only tax you should run into at the time your parents' house passes to you is the provincial probate tax (about 1.5%).
Going forward, if you own two properties, only one of them is your principal residence. Therefore only one is free of potential capital gains tax. If you keep your parents' house and later sell it, you will pay capital gains tax on it if it has increased in value during the time you owned it. Assuming that your own home in NL is your principal residence, you will not pay capital gains tax on it when you sell.
Owning one house is not a tax issue. Once you own a second one though, things get more complicated.
Hope this helps.
Lynne
Lynne Butler
Hi. I'm really glad you're looking for information before going ahead, because I don't agree at all with the financial advisor's recommendation.
The fee-saving he is talking about is not actually in lawyer's fees, but in probate fees. In Ontario, the fees are quite large and they take a percentage of an estate. In Alberta, on the other hand, the fees are among the lowest in the country and cannot exceed $550.
So, the potential amount to be saved is $550. Let's balance that off against the pitfalls. The biggest pitfall is the risk to your mother of losing her investments. Though I doubt either you or your brother would do anything intentionally to harm your mother, you do pose a risk. If you or your brother were to get divorced, or to be sued, or to have a business failure, your mother could lose her investments. This is because if your name is on them, they are considered to be just as much yours as hers, and any debts of yours might be collected from her assets. The risk to your mother is significant and in my view is not justified by the potential saving of a small amount of money.
You also need to consider that in 2007 the rules regarding joint accounts between parents and adult kids changed. It's no longer the case that these joint accounts are excluded from the estate. Unless there is extrinsic and contemporaneous evidence given by your mother that says she put your names on so you could inherit, the funds would stay in the estate anyway. So in other words, it wouldn't even work unless your mother happened to find an estate-planning lawyer who could advise her on how to provide that needed evidence after she is gone.
I'm not neutral on this subject, as you can see. I think adding kids' names to assets to try (and often fail) to avoid probate is a terrible idea.
Lynne
The fee-saving he is talking about is not actually in lawyer's fees, but in probate fees. In Ontario, the fees are quite large and they take a percentage of an estate. In Alberta, on the other hand, the fees are among the lowest in the country and cannot exceed $550.
So, the potential amount to be saved is $550. Let's balance that off against the pitfalls. The biggest pitfall is the risk to your mother of losing her investments. Though I doubt either you or your brother would do anything intentionally to harm your mother, you do pose a risk. If you or your brother were to get divorced, or to be sued, or to have a business failure, your mother could lose her investments. This is because if your name is on them, they are considered to be just as much yours as hers, and any debts of yours might be collected from her assets. The risk to your mother is significant and in my view is not justified by the potential saving of a small amount of money.
You also need to consider that in 2007 the rules regarding joint accounts between parents and adult kids changed. It's no longer the case that these joint accounts are excluded from the estate. Unless there is extrinsic and contemporaneous evidence given by your mother that says she put your names on so you could inherit, the funds would stay in the estate anyway. So in other words, it wouldn't even work unless your mother happened to find an estate-planning lawyer who could advise her on how to provide that needed evidence after she is gone.
I'm not neutral on this subject, as you can see. I think adding kids' names to assets to try (and often fail) to avoid probate is a terrible idea.
Lynne
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