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Frequently Asked Questions - Estate Planning, Wills, Powers of Attorney and Personal Directives

As an Edmonton law firm with a diverse group of clients, we know that as there is a lot to consider please see our Frequently Asked Questions section below which provides detailed information on some the following questions:
  1. How much does an estate plan with a will, power of attorney and personal directive cost?
  2. How do I prepare an estate plan?
  3. What information do I need for an estate plan?
  4. What is a Will, Power of Attorney and Personal Directive?
  5. Where should I store my will, power of attorney and personal directive?
  6. What else should I store with my will, power of attorney and personal directive?
  7. How often should I review my estate plan?
  8. ​The Court's powers to re-write wills.  FAQs about including and excluding [disinheriting] family members.
  9. Why it may be very important for blended families to have a will.​

How much does an estate plan with a will, power of attorney and personal directive cost?

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​Click the icon for our online estimate for our standard estate planning services.

How do I prepare an estate plan?

It’s always up to you how to proceed and you can contact us if you want to start the estate planning process, or read more to find out what is involved in the​ process.

Our view is the value of estate planning is in the process and not just the paperwork.

Generally, for us to assist and advise you on developing an estate plan, we require basic information as to the different factors involved in your estate.

​Estate planning often involves more than just the documents, but also arranging your affairs so your estate is dealt with as you wish, and we usually proceed with a three step process.

Step One:        Information Gathering

The first step is to gather information respecting your estate so that we can discuss and address the different factors involved in your estate.

This initial step is important to ensure that you have all the information necessary for us to advise you and for you to consider how you want your estate to be dealt with.

Step Two:       Discuss Estate Plan and Considerations

After we have basic information respecting your estate we can discuss your estate plan and estate considerations including instructions for your will, and/or enduring power of attorney and personal directive, as the case may be.

One of the most important parts of our role is to ensure that our clients understand the nature and the effect of the legal documents that we prepare for them, so sometimes our clients require more than one discussion to develop an estate plan and provide instructions to us for document preparation.

Often in the course of our initial discussions we review and discuss the factors and legal consideration respecting our a client’s estate and estate plan, and the client takes some time to consider the information and advice and provides their instructions in a follow up discussion.

Step Three:     Review and Sign Documents

As the paperwork needs to be properly signed and witnessed in accordance with the applicable Laws we will meet to review and sign up your will, and/or enduring power of attorney, and personal directive as the case may be.

Contact us if you want to start the estate planning process.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

What information do I need for an estate plan

When you retain Lopatka Law to assist you in preparing your estate plan we will assist you in identifying the information and documentation that is needed to do so.

There is a lot of information that is needed but generally you will require to assemble information and documentation respecting the following:
  1. Your assets;
  2. Your liabilities and debts;
  3. Your children and dependents;
  4. Whom you want to be your personal representative for a will, attorney for a enduring power of attorney and/or an agent for a personal directive;
  5. For a will any specific Gifts you intend to make;
  6. For a will your beneficiaries;
  7. For a will your guardian of your minor and dependent children;
  8. For a Personal Directive any particular instructions you may have for your Guardian;
  9. For an Enduring Power of Attorney any particular instructions or restrictions you may have for your Attorney.


We can be of assistance to you in preparing your estate plan and will so please contact us today to see how we can be of assistance to you.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

What is a Will, Power of Attorney and Personal Directive?


Wills

Your Will or Last Will and Testament is the document that will provide the details and instructions as to:
  1. The beneficiaries of your estate and what gifts they are to receive;
  2. The personal representative [executor or executrix] of your estate that will administer your estate in accordance with your will;
  3. Your funeral and burial arrangements if you have any specific instructions;
  4. Guardians for your minor or dependent children;
  5. other matters typically dealt with in your will [preservation of designated beneficiaries designations, Ahotchment or pre-distribution of estate, survivorship clauses, and age restriction clauses etc.],
and your Will can be used and relied upon only upon your death.

Contact us if you have any questions respecting your Will and how to prepare one.

Enduring Power of Attorney

The enduring power of attorney appoints an attorney or trustee [effectively an "informal" trusteeship] to make decisions respecting your financial affairs.

A power of attorney can be effective immediately or later upon a triggering event as outlined in the document.  Generally, the triggering event is a loss of capacity or competency, that is the ability to make decisions for yourself.

A power of attorney that is enduring it will continue into any incapacity or incompetency.

By having an enduring power of attorney you avoid the requirement having a loved one having to make an costly and timely application for to be appointed formally as a trustee under the Adult Guardianship and Trusteeship Act.

The enduring power of attorney will cease to be effective upon your death.

Contact us if you have any questions respecting your Enduring Power of Attorney and how to prepare one.

Personal Directive

A personal directive is sometimes referred to as a "living will."

A personal directive appoints an agent or guardian [effectively an "informal" guardianship] to make personal decisions for you and provides your instructions respecting medical treatment, where you live, your activities and legal issues [other than your financial affairs].

A personal directive is effective upon your loss of capacity or competency whereupon you are no longer able to make decisions for yourself.

By having a personal directive you avoid the requirement having a loved one having to make an costly and timely application for to be appointed formally as a guardian under the Adult Guardianship and Trusteeship Act.

The personal directive will cease to be effective upon your death.

Contact us if you have any questions respecting your Personal Directive and how to prepare one.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

Where should I store my will, power of attorney and personal directive?

Whether it is your will [death] or your power of attorney and personal directive [disability], it is important that the original paper copies of the documents are stored in a location that is both secure and accessible.

A secure location must be private to you, secure from theft, and secure from water and fire damage or other disruption, because the original paper copies will be required when the time comest to rely upon them, and it can substantial problems if the original paper copies are lost, damaged or there are marks upon them.

The location must also be accessible to your personal representative [will], attorney / trustee [power of attorney] and guardian / agent [personal directive] to ensure that they are found [you won't be around to let people know] and used when needed.

You can keep the contents of the documents private, but you should let your personal representative, attorney / trustee and guardian / agent know where the documents are being securely held. 

For your personal directive special consideration has to be had for accessibility as there is often an urgency to health matters.

Some possible locations are a safe or secure storage at your residence or in a safety deposit box at your local bank.

We can be of assistance to you in preparing your estate plan and will so please contact us today to see how we can be of assistance to you.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

What else should I store with my will, power of attorney and personal directive?

As paperless electronic record keeping and electronic delivery of documents to e-mails and service accounts that are encrypted and secured for your protection, it can be very difficult for a trustee, guardian, personal representative, executor and executrix as the case may be to prepare an inventory in the event of a death or an incapacity.

So, you should prepare a proper inventory of your assets and debts when you prepare your estate plan and include paper records for the assets and debts.  You should retain these records as it not only evidences your instructions and intent, but also acts as an inventory of some of your assets.

You should also prepare and retain for your records an inventory of your electronic and online assets including service providers, accounts, logon and passwords [including without limitation password managers accounts and passwords, email addresses, cellular numbers, telephone numbers, VOIP numbers and accounts, social media accounts (facebook, snapchat, twitter, tumblr, Instagram, linkedin, pinterest, reddit, badoo, myspace etc.], instant messaging platforms [facebook messenger, whatsapp, Tencent QQ, WeChat, Qzone, line, telegram etc. ], online accounts and service provided accounts [Apple, Amazon, Microsoft, Microsoft Store, Alibaba, Netflix, banks, investment services, utility providers (internet service provider, electricity, water, gas etc.), Canada Post,  credit cards, domain name host service  provider, Website host service provider, email host service provider, security systems and providers (schlage, ring, Vivint, alarmforce etc.)], streaming accounts (music, video and television etc.], software licenses and accounts, and online registrations and accounts for any and all property including without limitation smart devices [tax accounts, smart devices accounts (Alexa, Google Assistant, Apple Homepod, appliances, thermostats, locks, security systems, cameras)] 

You should update inventory of electronic accounts and passwords as may be required such that those you have appointed to act on your behalf [personal representative[s], trustee[s] and guardian[s]] are able to administer your affairs as they are not likely to rely upon you provide them with the details and information respecting the same.  Due to the personal, confidential and sensitive nature of these records and information, you should retain the passwords in a safe and secure location and maintain the confidentiality and privacy of the information and records.

Due to the confidential, private and sensitive nature of your electronic accounts and passwords, except for disclosure of the existence of the same as an asset [but not the password or login information],  your wills and estate lawyer generally doesn't require or request this information as a part of an inventory but it is of utmost importance that you have that information available to your personal representative, executor, executrix, trustee and guardian as the case may be.

We can be of assistance to you in preparing your estate plan and will so please contact us today to see how we can be of assistance to you.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

How often should I review my will and estate plan?

You should periodically review your estate plan, including your will[s], personal directive[s] and enduring power[s] of attorney to ensure that your plans and documentation are and up-to-date with the both the law and your circumstances.  

Your family circumstances may have changed, the laws may have changed, your mind may have changed about your beneficiaries or certain gifts or the law sometimes revokes your will[s] or parts of it when there are certain changes in your circumstances.

Changes in circumstances include a change in where you reside or where your assets are located.  As an Albertan Lawyer Lopatka Law is competent only in the Laws of the Province of Alberta, and cannot and will not advise upon Laws of other jurisdictions.  

So, in the event that you own assets or reside or commonly spend substantial amounts of time in another jurisdiction you should  have proper estate planning, incapacity planning and related documentation [Will, Enduring Power of Attorney and Personal Directive] and requirements attended to in that other jurisdiction as there may not be consistency between the Laws and requirements of the various jurisdictions for estate planning and incapacity planning.  The differences may be of utmost importance and have a substantial impact upon the distribution of  your estate.  Further, there may be important tax, trustee, guardianship and other considerations you may wish to consider.  In the event that you have or are considering wills, enduring power of attorneys, personal directives and other estate planning and incapacity planning documents and arrangements for other jurisdictions or otherwise, you should ensure that the any such documentation is consistent with the documents you already have such that they do not revoke the documentation we have prepared.  This may require you to revise and update the documentation we have prepared.

Another change in circumstance include a change in marital status from married to divorce, including common law partner or adult interdependent partnership from partners to separated].  Section 25 of the Wills and Succession Act, SA 2010, c. W-12.2, 
 states that a gift to a former spouse [marriage terminated by divorce judgment or found to be void] or a gift to a former adult interdependent partner is deemed void as follows:

"Gifts to ex‑spouse or former adult interdependent partner
25(1)  If, after a testator makes a will and before the testator’s death, the testator’s marriage is terminated by a divorce judgment or found by a court to be void or the testator ceases to be the adult interdependent partner of an individual, then unless the Court, in interpreting the will, finds that the testator had a contrary intention, any provision in the will that
                           (a)    gives a beneficial interest in property to the testator’s former spouse or to the individual, whether personally or as a member of a class of beneficiaries,
                           (b)    gives a general or special power of appointment to the testator’s former spouse or to the individual, or 
                           (c)    appoints the testator’s former spouse or the individual as an executor, a trustee or a guardian of a child under the Family Law Act
is deemed to have been revoked and, for the purposes of clauses (a) to (c), the will is to be interpreted as if the former spouse or individual had predeceased the testator."
Further, there are a large number of factors and considerations involved in drafting a will respecting child support and spousal support matters which would also need to be reviewed and considered, amongst other matters.

​​If you wish to revise or revoke your will[s], personal directive[s] and/or enduring power[s] of attorney then please contact us today to see how we can be of assistance to you.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.

The Court's powers to re-write a will. FAQs about including and excluding [disinheriting] family members.

​We are from time to time consulted about disinheriting a family member [spouse, partner, child and certain grand-children] by not including that family member as a beneficiary in a will or otherwise including them in the estate plan.  This article will address some of the considerations in disinheriting a family member.
 
There is legislation in Alberta and Court decisions which grant the Courts powers to override a testator’s freedom of a testator to change how the estate distributed from the testator’s will to provide for family members that are disinherited or do not receive a portion of the testator’s estate the Court considers is sufficient.
 
In this article we are addressing the following:
1.         Court’s Powers to Change Estate Distribution - Wills and Succession Act [WSA] Part 5 – Family Maintenance and Support;
2.         WSA “Family Member” that can Apply to Change Estate Distribution;
3.         Factors Courts Consider in Changing Estate Distribution;
4.         Disinheriting Adult Children Considerations.
 
1.              Court’s Powers to Change Estate Distribution - Wills and Succession Act [WSA] Part 5 – Family Maintenance and Support;
 
Part 5 Family Maintenance and Support of the WSA replaces former legislation [Dependent Relief Act which formerly was the Family Relief Act] but it uses similar language and terminology which is important to note because the Courts have had the power to re-write a will for quite some time and the decisions under the former legislation are applicable to the WSA, and Alberta Courts have and continue to apply the decisions under the predecessor legislation as the “wording is substantially the same” [McKenna Estate (Re), 2015 ABQB 37 at paragraph 16].
 
The WSA grants the Courts the powers to change the distribution of the estate for “family members” that do not received “adequate provision” to ensure that such disinherited family member receives “proper maintenance and support” effectively “re-writing” the will respecting the scheme of distribution in the testator’s will.
Reference:                Section 88 of the WSA which states in part as follows:
“88(1)      If a person
(a)             dies testate without making adequate provision in the person’s will for the proper maintenance and support of a family member, or
(b)             dies either wholly or partly intestate and the share to which a family member is entitled under a will or Part 3 or both is inadequate for the proper maintenance and support of the family member,
the Court may, on application, order that any provision the Court considers adequate be made out of the deceased’s estate for the proper maintenance and support of the family member.”
 
It should be clear that “family members” that have been WHOLLY disinherited [excluded from the will] or PARTIALLY disinherited [not receive full amount entitled to] will be able to apply to the Court.
 
In many cases, there will be a wide range of options for how to distribute an estate, any of which might be considered appropriate in the circumstances, and the Court will endeavor to respect the wishes of the deceased only interfering if it is absolutely required to such that that as long as the deceased is within the range of acceptability the Court should not interfere[Tataryn v. Tatryn Estate, [1994] S.C.J. No. 65, Gavinchuk v. Mickalyk, 2003 ABQB 849].
 
2.              WSA “Family Member” that can Apply to Change Estate Distribution;
 
As a “family member” [as defined by the WSA] can apply to Court to change the estate distribution to receive for proper maintenance and support, it is important to consider whom has the right to do so.
 
The parties that have the right to apply are as follows:
  1. Spouses and adulted interdependent partners [ss. 72(b)(i) and (ii)];
  2. Minor Children [ss. 72(b))iii];
  3. Minor Grand-Children the Deceased Acted as Parent To [ss. 72(vi)];
  4. Adult Children [18 to 22 years] that are Dependent Full-Time Students [ss. 72(b)(v)];
  5. Adult Children who is Disabled [“unable to earn a livelihood by reason of mental or physical disability”] [ss. 72(b)(iv)].
 
The foregoing family members will have the right to apply to the courts to exercise their powers under the WSA for adequate maintenance and support, which application should be made within 6 months of the grant of probate [ss. 89(1)], but can be made later [ss. 89(2)] and can be made by the family member or another party on their behalf [s. 90 and 92].
 
3.              Factors Courts Consider in Changing an Estate Distribution
 
The factors considered by the Courts in an changing estate distribution are set out in the WSA but also the case law.
 
WSA s. 93 – Matters 
 
While not an exhaustive list of the facts and circumstances, section 93 of the WSA sets forth factors the Court shall consider as follows:
 “Matters to be considered by the Court
93        In considering an application for the maintenance and support of a family member, the Court shall consider, as applicable,
(a)        the nature and duration of the relationship between the family member and the deceased,
(b)       the age and health of the family member,
(c)        the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
(d)       any legal obligation of the deceased or the deceased’s estate to support any family member,
(e)        the deceased’s reasons for making or not making dispositions of property to the family member, including any written statement signed by the deceased in regard to the matter,
(f)        any relevant agreement or waiver made between the deceased and the family member,
(g)        the size, nature and distribution of
(i)        the deceased’s estate, and
(ii)       any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death,
(h)       any property that the deceased, during life, placed in trust in favour of a person or transferred to a person, whether under an agreement or order or as a gift or otherwise, and
(i)        any property or benefit that an individual is entitled to receive under the Matrimonial Property Act, the Dower Act or Division 1 of this Part by reason of the deceased’s death,
and may consider any other matter the Court considers relevant.”
 
Case Law Considerations
 
Case Law is the law which arises from the decisions of the Courts judges as cases are tried and decisions rendered.  
 
Case law will continue to develop as cases are litigated and caselaw created.
 
Case law is also important because as is often the case the WSA [enacted in 2010] “codifies” or includes in legislation much of the law set out in case law.  For instance, many of the considerations from the Supreme Court of Canada’s seminal case of Tataryn v. Tatryn Estate, [1994] S.C.J. No. 65 are incorporated in the WSA, and so in that context the case law remains important because it perhaps provides additional considerations and detail respecting the considerations involved.
 
General Principles of Tataryn Estate
 
Tataryn v. Tatryn Estate, [1994] S.C.J. No. 65, [Tataryn Estate] is a decision of the Supreme Court of Canada is the seminal case on the family relief provisions being used to change the distribution of the estate from what is set forth in the testator’s will.
 
In Tataryn Estate the Court considers B.C. legislation similar to the Part 5 of the WSA, and while there are differences [see disinheriting a adult child below] the Court of Appeal in a in Koma v Tomich Estate, 2011 ABCA 186 [“Tomich Estate”] indicated that the general principles of Tataryn v Tataryn Estate applied in Alberta.
 
The Alberta Court of Appeal in Tomich Estate again perhaps best summarizes some of the principles enunciated in Tataryn Estate as follows:
“[17]    The leading decision of Tataryn discusses a number of principles:
• What is “adequate” goes beyond the bare “necessities”, and the statute does not contemplate a “needs-based” test. An award under the Act can take account of the family’s lifestyle and the claimant’s realistic expectations [pp. 816, 819];
 
• The statute attempts to balance the interests of testamentary autonomy with the need to provide economic protection to surviving family members. Neither of these values can outweigh the other. Where possible, the court should attempt to recognize both interests [pp. 815-6, 823-4];
 
• An award under the Act should not only consider the legal obligations of the deceased towards the family, but should also have regard to the moral obligations of the deceased. The law recognizes a moral obligation to a surviving spouse and dependent children, and a lesser obligation to adult children [pp. 820-1, 822-3];
 
• What is “adequate” must be measured against contemporary community standards, having regard to what “a judicious person would do in the circumstances, by reference to contemporary community standards” [pp. 814, 820-1];
 
• The extent to which all the legal and moral claims can be met will depend on the size of the estate. On the other hand, because there is no longer any need to provide support for the deceased, the surviving family members may be entitled to more than the support they would have received during the deceased’s lifetime [p. 823];
 
• The statute gives the court a wide ranging discretion [pp. 814-5].”
 
For clarity, the “legal obligations” and “moral obligations” considered by the Court in Tataryn Estate are as follows:
  • The “legal obligations” of the deceased, are the deceased’s liabilities [rights asserted against deceased] during his / her lifetime;
Reference:        Tataryn Estate at paragraph 29
“¶ 29      The first consideration must be the testator's legal responsibilities during his or her lifetime. The desirability of symmetry between the rights which may be asserted against the testator before death and those which may be asserted against the estate after his death has been noted by the dissenting member of the British Columbia Law Reform Commission in its 1983 report on the Act, Report on Statutory Succession Rights (Report No. 70). Mr. Close argues (at p. 154): 
A person is under a legal duty to support his or her spouse and minor children. If this duty is not observed then it may be enforced through the courts. That a testator's estate should, therefore, be charged with a duty similar to that borne by the testator in his lifetime is not troublesome.      
It follows that maintenance and property allocations which the law would support during the testator's lifetime should be reflected in the court's interpretation of what is "adequate, just and equitable in the circumstances" after the testator's death.”
  • The “moral obligations” are “society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards”.
 
Additional Case Law Considerations
 
Court Interferes ONLY IF NOT in Range of Acceptability
 
In many cases, there will be a wide range of options for how to distribute an estate, any of which might be considered appropriate in the circumstances, and the Court will endeavor to respect the wishes of the deceased only interfering if it is absolutely required to such that that as long as the deceased is within the range of acceptability the Court should not interfere; [Tataryn v. Tatryn Estate, [1994] S.C.J. No. 65, Gavinchuk v. Mickalyk, 2003 ABQB 849].
 
Reference:               Tomich Estate at paragraph 24:
“24     In Tataryn the Supreme Court noted the competing values of testamentary autonomy and the legitimate claims and expectations of surviving family members. The Court made a number of observations on this subject. Firstly, the Court noted at p. 823 that where the estate permits, both objectives should be achieved. Secondly, the Court indicated at pp. 823-4 that there is a range of estate plans that will satisfy the legal and moral obligations of the testator, and that "provided that the testator has chosen an option within this range, the will should not be disturbed", and the "will may provide a framework for the protection of the beneficiaries". Thirdly, the Court directed that the freedom of the testator to dispose of his property should be interfered with only so far as the statute requires. Fourthly, the court has a wide ranging discretion. In this case the parties took extreme positions: the appellant asked that the whole of the undistributed estate be given to her unconditionally, whereas the respondents argued that no provision at all should be made. The court is not bound by these positions, and may formulate any creative solution that fits the circumstances of the particular estate.
 
Spouse / Partner Domestic Contract Disregarded
 
In McKenna Estate (Re), 2015 ABQB 37 the Court held that s. 103 of the WSA, set above which prohibits parties from contracting out of Part 5 of the WSA, resulted in the Court disregarding a Pre-Nuptial Agreement notwithstanding it expressly provided a release and surrender of any interest in each parties’ respective estates, with the Court considering a Pre-Nuptial Agreement not to preclude any redistribution under the WSA if necessary [at paragraph 37].
 
Poison Pill Clause Not Enforceable
 
In Foote Estate (Re), 2010 ABQB 197 the Court opined without deciding the point [at paragraph 50] that “poison pill” clause disinherinting a beneficiary whom challenges the will are arguably against public policy and enforceable, and was used as grounds for the estate to pay the costs of parties challenging the will and an acknowledgment that the testator considered that family members would not be content.
 
Limiting Rule Precluding Estate Building 
 
Courts have often held, particularly noteworthy in the context of blended families, that in certain circumstances the claim of certain family members may be subject to a “limiting rule” that prevents estate building with claimants attempting to amass an estate for the claimants beneficiaries under the guise of a claim for proper maintenance and support under Part 5 of the WSA for maintenance and support such that the Court should only be providing for proper maintenance and support of the claiming family member not estate building [Birkenbach Estate (Re), 2015 ABQB 3  at paragraph 22, and Re Eisert-Graydon, 2003 ABQB 40].
 
Estrangement
 
In Stayko v. Stayko [2002] A.J. No. 1404 (Q.B.) wherein a long estranged wife [separated for 50 years] made an application with the Court in Stayko finding that there was neither a legal obligation to support if the deceased were alive nor any moral obligation as there was no real existing connection with deceased and perhaps importantly no obvious need for support.
 
Balancing Claims of Various “Family Members”
 
As set forth above Tomich Estate [at paragraph 17] the Courts will balance the various claims of the various parties, with the Court stating in part as follows:
“• An award under the Act should not only consider the legal obligations of the deceased towards the family, but should also have regard to the moral obligations of the deceased. The law recognizes a moral obligation to a surviving spouse and dependent children, and a lesser obligation to adult children [pp. 820-1, 822-3]”
 
Interests of Parent and Child are not the same
 
In Karim v Hirji Estate, 2017 ABQB 526 at paragraph 19 the Court notes that the interests of a parent and those of a child are not the same as future uncertainty renders the interests of the mother necessarily different from those of her son which argument was raised in the context of the mother [and child] seeking to have a gift to the deceased’s parents to be paid to the deceased’s [and mother’s] son. 
 
Child of Tender Age
 
Any determination as to the future anticipated needs of a child of tender age would be speculative at best, and so for a minor child of tender age that is entitled to adequate maintenance and support from the estate and to the extent that guesswork may be required, the Court should guess at the higher end of the appropriate range. Or, in the words of Wilson J. in Rudd-Birkenbach v Birkenbach Estate, 2015 ABQB 3 (CanLII) at para 127, 5 ETR (4th) 260, if the Court is to err in quantum, it should err “on the side of awarding more rather than less”.
 
3.              Disinheriting an Adult Children Considerations; 
 
It is clear from the foregoing that WSA disabled adult child that is unable to earn a livelihood due to mental or physical disability may have rights to apply for adequate maintenance and support from an estate if it is not provided for in a will so disinheriting a disabled adult child may result in the “re-writing” of your will.
 
Further, the definition of “family member” in the WSA only references adult children as follows:
  1. Adult Children [18 to 22 years] that are Dependent Full-Time Students [ss. 72(b)(v)];
  2. Adult Children who is Disabled [“unable to earn a livelihood by reason of mental or physical disability”] [ss. 72(b)(iv)].
 
So, other than dependent full time student between the ages of 18 to 22, a non-disabled adult child is not considered a “family member”.
 
Determination of Adult Child as “Disabled” [Unable to Earn a Livelihood Due to Mental or Physical Disability]
 
As a disabled adult child is expressly entitled to apply for family maintenance and support, whether a disinherited adult child is disabled [unable to earn a livelihood due to mental or physical disability] will often determine whether such adult child is entitled to make an application.
 
Circumstances may change from time to time as an adult child may become disabled.
 
Also, there may be circumstances that the Court finds there to be a disability that renders a disinherited adult child “unable by reason of mental or physical disability to earn a livelihood” which a party may not consider there to be a disability, and reference is made to the following:
1.         Soule v Johnasen Estate, 2011 ABQB 403 (CanLII), the Court found that Hepatitis C [from unprotected sex and IV drug use] was a disability and consequently the estranged disinherited adult son was entitled to adequate maintenance and support;
2.         In Re Birkenbach 2015 ABQB 3 the Court considered a disinherited adult son that:
  • a.         Was employed and calculated to earn about $80,000 per year;
  • b.         Had expenses of about $65,000 [less than income] but had “champagne tastes on a coca-cola income” with an “apparent unwillingness to rein in his spending”;
c.         suffered from severe dyslexia and a severe learning disability [had not graduated Grade 12] but was considered by the Court to be intelligent,

and the Court in Birkenbach found the disinherited adult on to be “disabled” and awarded maintenance and support a  $500,000 settlement [for the university years up to 22 - notwithstanding the son didn’t go to school] plus $ 3million dollars [from a $42 million dollar estate] to see him through to the age of 65 years and permit him the opportunity to pursue education as notwithstanding his learning disability he was an intelligent individual.
 
Applications by Non-Disabled Adult Children 
 
There are numerous cases where applications were made by non-disabled adult children seeking family maintenance and support, both before and after Tataryn Estate.
 
Reference is made to Tataryn Estate because it is from the Supreme Court of Canada [binding upon all Courts in Canada] and the testator expressly disinherited a non-disabled adult son for reasons set forth in his will [long term estrangement], with the Court examining B.C. Legislation and ultimately awarding the able-bodied adult son applicant 1/3rd beneficiary interest of the estate, expressly contrary to the will. 
 
In Tomich Estate the Alberta Court of Appeal cautioned that differences in the B.C. legislation and Alberta legislation “restrains the ability of Alberta Courts to grant relief” [at paragraph 17].
 
The Court in Re Birkenbach 2015 ABQB 3 considered whether Tataryn Estate does not apply to permit a non-disabled adult child to apply for family maintenance and support, with the Court decided that a non-disabled child is not entitled to make such an application and further notes that there are several decisions in Alberta which already have decided [Re Gray Estate, Re Willan Estate, Siegel v Siegel Estate].  
 
As noted in Re Birkenbach, numerous applications by non-disabled adult children have been made [Re Gray Estate, Re Willan Estate, Siegel v Siegel Estate] so notwithstanding the case law in the matter this issue appears to be repeatedly raised.  So, it should be noted that Re Birkenbach is a decision of the Court of Queen’s Bench decision so persuasive but not binding case law upon other Justices of the Court of Queen’s Bench.
 
The Court in Re Birkenbach considered the Dependent Relief Act, prior legislation which was replaced by the WSA, and while likely obiter [non-binding commentary particularly as the Court found the applicant in Re Birkenbach to be disabled] it is perhaps persuasive reasoning the Court in Birkenbach notes that there is a “dependency” requirement under prior legislation and the WSA [although the case was considered under prior legislation] [Paragraphs 42, 43, 44, 46, and 47]
 
These Laws effect every person domiciled and/or with Property in Alberta.
 
Please contact us to see if we can be of assistance to you in preparing your estate plan or in navigating your rights and responsibilities as a beneficiary, personal representative [executor or executrix] or potential claim as a dependent family member against an estate.
 
This is not legal advice and does not create a solicitor-client relationship, please see our terms of use for our website and blog.

Why it may be very important for blended families to have a will?

In addition to the Court's powers to re-write a will under the Wills and Succession Act [as set forth above], blended families with step-parents raising their own children and step-children from a partner’s or spouse’s relationship another party is common and becoming more common with time and have additional considerations that make it important that these parties have a will.
 
Unfortunately for the step-moms and step-dads and the step-kids in blended families, if you die without a will, the applicable legislation may treat your blended family different from a non-blended family and exclude step-children, providing for a scheme of distribution of your estate that is contrary to your wishes, requiring step-parents to prepare their estate plans and wills to distribute their estates to their sons, daughters, step-sons and step-daughters as they want to avoid this legislation.

If you die without a will, you die “intestate”, and Part 3 of the Wills and Succession Act, S.A 2010, c. W-12.2 provides a scheme of distribution that applies to all people that die without a will, and for those in a blended family that die without a will, the Wills and Succession Act provides:
  1. Where there is no surviving spouse or partner, members of the blended family may not be treated equally with step-children being excluded from distribution of the estate; and
  2. Where there is a surviving spouse or partner, the scheme of distribution is different between blended families [children and step-children] and non-blended families [children and no step-children].

1.  When A Spouse or Partner does not Survive the Wills and Succession Act Intestacy Distribution Rules May Exclude Step-Children of the Blended Family.

In Peters Estate (Re), 2015 ABQB 168 CanLII, a recent decision from the Alberta Court of Queen’s Bench, the Court considered the circumstances of a step-parent [Ileen Peters] whom died without a will, well after the death of her husband [Lester Peters], leaving behind one biological child [Gordon Peters] from her marriage and four step-children [from the husband’s prior relationship].
 The circumstances were very sympathetic to the four step-daughters, with the Court noting at paragraph 12 of the decision as follows:
  1. Ileen Peters and Lester Peters were married for 43 years;
  2. Lester Peters was the father of all five of the children;
  3. Lester Peters and Ileen Peters were in bankruptcy at the time of Lester Peters’ death;
  4. Marette Peters [one of the step-daughters] contributed to efforts which resulted in the successful conclusion of the bankruptcy proceedings; and
  5. All of the children gave up their interest in the estate of Lester Peters in favour of Ileen Peters [as set out below, if Lester Peters died intestate the step-daughters would have a claim in their father’s intestate estate];
  6. There were discussions between Ms. Peters and Marette Peters [one of the step-daughters], and amongst the children, concerning the possible distribution of her estate; and
  7. Ileen Peters was a step-mother to the step-daughters stood in in loco parentis [in the position of parent] to the step-daughters, introduced them as her daughters, and treated them in every respect as her daughters, and their children as her grandchildren [at paragraph 16].
However, sympathetic circumstances may be, the Court ultimately held that they were not relevant to determining entitlement under the intestacy provisions of the Wills and Succession Act .

As Ileen Peters died without a will, the Court in Peters Estate considered sections 65(a) and 66(1)(a) of the Wills and Succession Act applied, which, as set out below, entitle only the “descendants” of Ileen Peters to the Estate:

“65       If an individual dies leaving no surviving spouse or adult interdependent partner, the intestate estate shall be distributed
(a) to the descendants of the intestate in accordance with section 66 …
…
66(1) When a distribution is to be made under this Part to the descendants of any individual, the intestate estate or the portion of it being distributed shall be divided into as many shares as there are
(a) children of that individual who survived the intestate ….”

The Court in Peters Estate considered the definition of “descendants” considering that it included only biological children excluding step-children as follows:

"[10]     “Descendants” means all lineal descendants of an individual through all generations: Wills and Succession Act, s1(1). “Lineal descendants” means a blood relative in the direct line of descent – children, grandchildren and great grandchildren are lineal descendants: Black’s Law Dictionary, 7th Ed."

Standing in the Position of Parent / Loco Parentis
It is also important to note that in coming to this conclusion in Peters Estate the Court directly addressed several contrary arguments to include the step-daughters as descendants as follows:
  1. That the step-mother stood in in loco parentis [in the position of parent] to the step-daughters, introduced them as her daughters, and treated them in every respect as her daughters, and their children as her grandchildren, with the court noting that “it is as it should be but it does not change the effect of the clear provisions in the Wills and Succession Act” [paragraph 16].
  2. That section 68(b) of the Wills and Succession Act, which requires “descendants of the half-kinship to inherit equally with those of whole kinship in the same degree of relationship to the estate” as not applying to step-children as they were not descendants [either half-kinship or whole kinship] [paragraphs 14 and 15.

While the Court in Peters Estate held that intestacy sections of Part 3 of the Wills and Succession Act provide for the biological son to be the sole descendant and the step-kids excluded as descendants, the Court recognized the difficulties the legislation creates caution step-moms and step-dads about the potential risks of dying without a will stating at paragraph 20 as follows:

“This case is an example of the personal difficulties and harm to relationships which can occur when individuals do not have a will. The distribution of this modest estate has become an instrument with the potential to create, enhance or perpetuate ill will amongst five family members at a time when they should instead be benefiting from good memories of their mother and father.”

As noted by the Court in Peters Estate, to avoid the application of the Wills and Succession Act, which in Peters Estate resulted in the exclusion of step-children from distribution of the Estate, step-mothers and step-fathers need to prepare have a will and an estate plan in place.

2.  When a Spouse or Partner Survives there are different Intestacy Distribution Rules in the Wills and Succession Act For Blended Families and Non-Blended Families Where There Is A Surviving Spouse or Partner.

In circumstances where an individual dies without a will, and leaves a spouse or partner and descendants, then section 61(1) of the Wills and Succession Act applies, which states as follows:

“61(1)  Subject to section 63, if an individual dies leaving a surviving spouse and one or more descendants, or leaving a surviving adult interdependent partner and one or more descendants,
(a)        the entirety of the intestate estate goes to the surviving spouse or adult interdependent partner, if all of the intestate’s descendants are also descendants of the surviving spouse or adult interdependent partner, or
(b)       if any of the intestate’s descendants are not descendants of the surviving spouse or adult interdependent partner,
    (i)        the surviving spouse or adult interdependent partner is entitled to the greater of the prescribed amount or 50% of the net value of the intestate estate, and
  (ii)       the residue of the intestate estate shall be distributed among the intestate’s descendants in accordance with this Part.”

Non-Blended Families – Surviving Spouse or Partner Receives Entirety of The Estate

In short, if it is not a blended family [ALL of the descendants are children of the relationship between the deceased and the surviving spouse or partner], then the surviving spouse or partner receives the entirety of the estate.

Blended Families – Surviving Spouse or Partner Does NOT Receive Entirety of The Estate

However, if it is a blended family, and some of the deceased’s are not all children from the relationship between the surviving spouse or partner THEN the scheme of distribution is different with the surviving spouse getting the greater of a specified amount [at this time of this post $150,000.00] or 50% of the net value of the estate with the descendants getting the remainder.

As set out above, based upon the a recent decision considering whom is a “descendant”, only the biological descendants of the deceased [and not the non-biological step-children of the deceased], will be entitled to the 50% share of the estate resulting in the exclusion of members of the blended family.

The Wills and Succession Act treats blended families and non-blended families dramatically different from each other.

The obligation is upon the step-mom or step-dad to prepare a will specifying how their estate is distributed otherwise, they will die intestate and their estate distributed according to Part 3 of the Wills and Succession Act.

We can be of assistance to you in preparing your estate plan and will so please contact us today to see how we can be of assistance to you.

This is not legal advice and does not create a solicitor-client relationship, please see the terms of use respecting the use of our website and our blog.
 

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