Some basic information about the law around the Wills Variation Act:

A wills variation claim can be made by a spouse or children of the deceased and must be made within 6 months from the date of the issue of probate of the Will in BC (probate is the process of getting the court to rule that the Will is legally valid).

“Spouse” under the Act includes same-sex and common law spouses who were living together in a marriage-like relationship for at least two years.

“Children” includes adopted children but excludes step-children.

If the court finds that the will maker died leaving a Will that does not make adequate provision for the proper maintenance and support of his or her spouse or children, the court has discretion to vary the Will to make the Will, in the court’s opinion, adequate, just, and equitable in the circumstances.

The policy behind the Act is that the will maker has a legal and a moral obligation to give fair consideration to his or her spouse and children when preparing a Will. While the “moral obligation” of the will maker is highly dependent on the facts, the courts look to whether the will maker was “acting in accordance with society’s reasonable expectations of what a judicious parent [and spouse] would do in the circumstance by reference to contemporary community standards.” (Clucas v. Royal Trust Corporation of Canada es qual, 1999 CanLII 5519, para.12).

It is important to understand that the law surrounding the Wills Variation Act makes it difficult to disinherit a spouse/child, and the will maker must have rational reasons for disproportionately distributing assets to his or her spouse/children.

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Did you know there’s a summer night market at the Shipyard Square every Thursdays and Fridays between May 10 – October 11? There will be farm produce, food trucks, entertainment (including board games!), and artisans vendors. All the wholesome goodness that makes markets so great. It makes use of the lovely space that’s usually deserted, and the pier is a nice place to catch the sunset. Go check it out!

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Find East Van Roasters at 319 Carrall Street, in Gastown, Vancouver.

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Alternatively, you might consider leaving a cash gift to a family member, a special friend, or a charity organization you have supported during your lifetime.

As hard as it is to think about what should go in your will, it’s an opportunity to think about the important people in your life and how they make your life special and meaningful.

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Today, I went across the street to Coffeebar at 10 Water Street in Gastown.

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Properties held in joint tenancy. These are properties you own jointly with another person which passes by “right of survivorship”, which means survivor takes all. For example, couples often own their home or bank accounts in joint tenancy so the surviving couple automatically owns the whole property upon the death of the other couple. (In comparison, when properties are owned as tenants-in-common, each of the owner owns an undivided partial interest in the property, which means that if one owner dies, that person’s partial interest in the property will distributed in accordance with the deceased’s will.)

Property where you have designated a beneficiary. You may remember designating a beneficiary when you signed up for a life insurance policy, set up an RRSP or  RRIF, or became part of a pension benefits program. By doing so, that property does not form part of your estate but will be transferred to the named beneficiary outside of your will. However if the designated beneficiary passes before you, or if you name your estate as the designated beneficiary, the asset will form part of the estate to be distributed under the will.

Trust established during your lifetime. AKA “inter vivos trust”, are trusts created while you are alive. The trust agreement should cover how the trust property is to be dealt with upon your death, leaving that asset outside of the estate that will be governed by your will.

There are always exceptions and intricacies that may complicate the matter outlined above, but it’s good to keep in mind the effect of properties held in joint tenancies, designating a beneficiary, and trusts established while you are alive.

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If you die without a will (called dying intestate), it means BC laws will determine how your estate will be divided. In addition to the lack of control you have of your estate and children’s guardianship, it will cost significantly more to administer your estate.

BC’s Estate Administration Act* sets out the following rules with respect to division of your estate:

Home in your name: Your spouse will have the right to use it for life.

If you have a spouse and no children or grandchildren: Your spouse will receive your whole estate.

If you have a spouse and children: Your spouse will receive the first $65,000 of your estate and your spouse and children will share what’s left. Currently children outside of marriage are included but step-children are excluded.

If you have children but no spouse: The estate will go to your children. If your children die before you leaving their own children, your grandchildren will take equally the share of your deceased child.

If you have no spouse, no children and no grandchildren: Your surviving parents will get your estate, and if your parents have both died before you, your estate will go to your siblings. If your sibling passed away before you leaving their children, your nephews and nieces will receive your sibling’s share.

If you have no immediate family: Your estate is divided among your nephews and nieces, and so forth to your next-of-kin who are closest in blood relationship to you. If you have no surviving next-of-kin, your estate passes to the BC Government.

The definition of “spouse” under the law includes person who has lived with you for at least two years in a marriage-like relationship immediately before your death. This means that you can have more than one “spouse” and the court will determine what is a fair division of the estate between the spouses.

Without a will appointing a guardian, a person must apply to the court to be appointed a guardian for children under 19. In addition, the Public Guardian and Trustee becomes the child’s trustee and hold the child’s share of the estate in trust until the child reaches 19 years old. That means the child’s new parent or guardian will have to apply to the PGT to get access to the funds for use in living expenses, education etc.

Without a will appointing an executor, someone must apply and be appointed by the court to become the administrator of your estate. The process is much more time-consuming and costly compared to appointing an executor in your will.

Making a will is the only way to avoid applying the laws outlined above. If you want to control what happens to your estate and your children, and if you want to minimize the administration costs of distributing your estate, it’s time to make a will!

*The current laws will undergo significant changes once a new legislation, the Wills, Estates and Succession Act, comes into force on March 31, 2014. 

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Have you tried the smoothies and fresh-pressed juices from The Juice Truck parked on the corner of Abbott St and Water St? It’s the best thing to get if you feel like you need a healthy energy boost, had too many pizzas and not enough fruit and vegetables, and the perfect accompaniment to a blah leftover lunch you brought to work. Each item on the menu has the right balance of healthy ingredients to make it taste oh so delicious. It feels good just knowing you are giving your body a healthy dose of vitamins, minerals, and enzymes. The Juice Truck’s team clearly cares passionately about healthy living, using local and organically sourced produce.

If you’re feeling groggy and thinking about trying some form of detox, The Juice Cleanse might just be the right remedy to “help you push the reset button”.

Find The Juice Truck on the southwest corner of Abbott St and Water St.

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If you are a parent, have you put your mind to who you’d like to act as your children’s guardian?

If there is no surviving guardian for your child, and no guardian appointed by will, the guardianship of the child is left to the Crown. That means the Director of Children and Family Development becomes the personal guardian of the child and the Public Guardian and Trustee becomes the property guardian of the child. If a family member or friend wishes to become your child’s guardian, that person must first apply to the court to be appointed.

However this can simply be avoided by appointing a guardian in your will. It’s also a good idea to appoint an alternate guardian(s) in case your first-named guardian is unable or unwilling to act as your child’s guardian.

Here are some thoughts to consider when making the big decision*:

• Who would you be most comfortable having your children live with? Why?

• Who does your child already feel comfortable with?

• Whose parenting style, values and beliefs most closely match your own?

• Who is most emotionally, financially and physically prepared to take on the responsibility?

• Would your child have to move far away?

• Would your guardian take all of your children or would they have to be split up among relatives and friends?

• Does the person you’re considering have other children? If not, how do you know he or she would make a good guardian?

Difficult? Yes. Necessary? 100%

* Questions to consider taken from a Globe & Mail article found here. 

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It’s difficult for self-employed individuals to plan for when you might need to be away from your business due to maternity, parental, or compassionate care obligations, or because of injury or illnesses.

The special benefits available to self-employed individuals on a voluntary basis started in 2010, so while it may not be news to many of you, it’s good to know the details and decide if it’s something that makes sense for you.

Here are the basics:

WHO: You are eligible to register if you operate your own business, or if you work for a corporation but you cannot access EI benefits because you control more than 40% of the corporation’s voting shares.

WHAT: Maximum annual EI premium  for 2013 is $891.12. The premium is $1.88 for every $100 you earn up to the maximum insurable earning of $47,400. There is also a minimum amount of self-employed earnings required during the calendar year before the year you submit a claim. In 2012 it was $6,342.  Maximum EI benefits you can receive is equal to 55% of your average weekly earnings up to a defined annual limit of $501/week for 2013, based on the maximum insurable earnings of $47,400.

There are 4 types of EI benefits:

(a) Maternity benefits cover the period surrounding the child’s birth up to 15 weeks. (max $501/week x 15 = $7,515*)

(b) Parental benefits for any parent (mother or father) to care for their newborn or newly adopted child or children. Either parent can receive benefits, or they can share benefits between them for up to 35 weeks. (max $501/week x 35 = $17,535*)

(c) Sickness benefits for people who cannot work due to injury, illness, or the need to be isolated in quarantine because they may be carrying a disease, for up to 15 weeks. (max $501/week x 15 = $7,515*)

(d) Compassionate care benefits for people who must be away from work temporarily to provide care or support to a family member who is seriously ill with a significant risk of death, for up to 6 weeks. The 6 weeks of benefits can be shared between different family members who applied and are eligible to receive them. (max $501/week x 6 = $3,006*)

WHEN: You have to wait 12 months after the day you register and start paying premiums before you can apply for the EI benefits. *It’s important to know that while you can change your mind about registered before you claim benefits, once you have claimed any EI benefits, your participation in the self-employed EI program lasts indefinitely and you will have to pay premiums for the rest of your self-employed career.

Things you have to consider include whether you plan to have children, how many, whether you plan to make no income during your leave from your business, and calculate whether the benefits outweigh the premiums you must contribute to participate in the program.

You can find more details and how you can register here on the Services Canada website.

*The calculated maximum benefits in this post are based on 2013 figures.

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