Wills

What is a Codicil?

Sometimes you need to make a small change to your Will.  You can legally do this on a separate piece of paper that is attached to your Will.  This Codicil must be drafted, witnessed and signed properly.

How can I ensure nobody can challenge my Will?

You may have people not even invited to the party but they still want some treats!

If someone decides to claim a piece of your estate, they can try to challenge the terms of your Will.  If their challenge is not reasonable they will not win.  Doing a proper Will with a completed Questionnaire and backup documentation will help your Executor to disprove a frivolous claim.

How do I pick a guardian for my children?

You should carefully consider who would take over the parenting role if you and your partner died.  Consider things like family or friends, age, values, geography and having an individual versus a couple.

Can my guardian also be the trustee?

The trustee is responsible for managing the children’s money.  Some people appoint the same person to be guardian and trustee.  However, usually it is best to have different people in these roles so that there is no conflict of interest.  Try to ensure the guardian and the trustee get along and will be able to work together.

How often should I change my Will?

As a general rule you should review your Will every three to five years and consider things like:

  • Death of an Executor, a witness to your Will or a beneficiary
  • Birth of a child or grandchild
  • Marriage
  • Divorce
  • Common-law relationship
  • A significant change in assets
  • Moving out of province

Enduring Power of Attorney

My kids live in British Columbia. Should I still appoint them as my Attorneys?

You can appoint people from out of province or even out of country to manage your financial decisions.  Speak to them beforehand and decide whether the geographical distance would make the decision making process cumbersome.

Can’t my husband, wife or life partner make the decisions for me if I’m very ill or in an accident?

Your spouse of partner will not have the legal authority to make your financial decisions if you are not capable of doing this yourself. Only someone appointed by you in an Enduring Power of Attorney can do this.  You can pick your husband, wife, life partner or anyone else you choose.  Otherwise a Court Application for a Trustee to be appointed will be necessary.

My dad, a widower, has dementia.  Can I get him to sign an Enduring Power of Attorney so that I can manage his finances?

Your father must have the mental capacity to understand the nature and effect of what he is signing. If he does not then the document can be challenged.

My husband and I are now divorced.  Does that cancel my Enduring Power of Attorney?

No, separation and divorce do not automatically cance the documents.  If you do not want your ex-husband to make decisions in case of your future incapacity, you should do a new Enduring Power of Attorney.

Personal Directive

Can I appoint more than one person to make decisions about my personal care?

You can appoint more than one person to be your Agent but consider including instructions for dispute resolution if the Agents disagree on something.

You can specify whether you want them to make decisions separately as well as together.

An Alternate should always be appointed in case your first choice is not available due to things like travel or their own illness.

Can my Agent “pull the plug” if I am in a coma?

Most Personal Directives include a clause advising that they do note wish heroic measures taken to prolong their life.  However, euthenasia is not legal no matter how dire the situation may be.

What happens if the doctor says I do not have the mental capacity to make a Personal Directive?

“Interested parties”, usually family or friends, will need to make an application to the Court to appoint someone to be your guardian.

Residential Real Estate

What is a Real Property Report?

This is a document done by a surveyor.  It shows the current location of the house and all other additions or improvements on the property.  These additions include things like garages, fences, decks, air conditioning units, retaining walls and so forth.

It is sometimes called a “survey” or, more commonly, an “RPR”.

What are the typical costs involved in buying or selling a house?

In addition to the purchase/sale price, you should consider:

BUYER SELLER
  • Appraisal Fees
  • Mortgage Fees (eg: CMHC)
  • Insurance
  • Fees to register the title and the mortgage
  • Property tax adjustments
  • Condominium fee adjustments
  • Homeowners association fee adjustments
  • GST (if buying new build)
  • Legal fees and out-of-pocket costs
  • Realtor’s commissions
  • Mortgage payments
  • Cost of a Real Property Report
  • Cost for an Estoppel Certificate for a condomimium
  • Property Tax Adjustments
  • Condominium Fee Adjustments
  • Homeowners association fee adjustments
  • Legal fees and out-of-pocket costs

What is the difference between joint tenancy and tenants in common?

If you own your home as joint tenants, the ownership is “indivisable”.  When one of you dies, the surviving joint tenant owns the entire property.  Joint tenants cannot leave their share of the house to anyone else in a Will.

If you own the home as tenants-in-common, each person owns a portion (usually one-half but not always) that belongs only to them.  A tenant-in-common can leave their share to anyone they choose.