David H. Dunsmuir, Licensed Professional Corporation - serving the legal needs of the Fredericton Ormocto area of NB. New Brunswick's finest legal cousel for Family law, Real Estate dealings, Civil Litigation and a wide variety of other areas. Check out our web page about Value-Based billing! Click here to contact David H. Dunsmuir, serving Fredericton New Brunswick's legal needs, and providing advice and counsel in Business Law, Civil Litigation, Elder Law, Family Law, Immigration, Real Estate, Wills and Estates.
David Dunsmuir has been practicing law since 1992, and specializes in business law, elder law, civil litigation, family law, immigration, wills and estates, power of attorney, personal injury law, and real estate law. David H Dunsmuir, Fredericton's leading barrister and solciitor, attorney at law. Value-based billing allows us to provide you with an easy, affordable and calculable way to take care of your legal needs. It enables you to have the best lawey available in the Fredericton area, and know in advance what you can expect to pay for standard legal services. If you are in fredericton new brunswick and engaged in any kind of civil litigation, David H. Dunsmuir should be your first choice in NB attorneys, barristers or solicitors.
Visit David H Dunsmuir Licenced Professional Corporation, serving Fredericton NB in the areas of Civil Litigation, Family Law, Real Estate Law and Immigration Law
David H. Dunsmuir provides expert advice in the area of Business Law, as well as expert advice in Family Law and Civil Litigation
For Civil Litigation Law, David H. Dunsmuir, Licenced Professional Corporation, is the best available resource for you!
Elder Law is a complex and delicate field. Why trust yourself to anyone else? David H. Dunsmuir is Fredericton's expert in all areas of Elder Law.
David H. Dunsmuir is Fredericton New Brunswick's best resource for Family Law, whether you're dealing with divorce, custody, adoption or any other subject related to Family Law.
Are you trying to immigrate to Canada? If you're immigrating to Canada, David H. Dunsmuir provides excellent immigration advice and legal services.
If you're buying or selling your home, business or other real estate, David H. Dunsmuir is an expert in all legal aspects affecting realty. When it comes to Real Estate law in Fredericton NB, David H. Dunsmuir Licensed Professional Corporation is who you need to consult.
There is no more delicate a time than when a loved one passes. For all your needs regarding wills, probate and estate law, David H. Dunsmuir is the legal advisor for you. Whether you're drafting your own will, or require help executing or understanding the will of a friend or family member, David will provide exceptional legal advice in the areas of Wills and Probate Law and Estate Law.

Wills and Probate

Wills

All persons must at some point contemplate their own mortality and plan for the care and support of their survivors, including transference of assets to those to whom the deceased either directs or, in the absence of such direction, who are entitled by the law to receive such assets.

The means by which a person chooses whom he or she will benefit after their death is the preparation of a written document setting out such directions called a Will. Not all written documents that purport to provide directions as to the disposition of assets upon a person’s death will be legally recognized as such unless certain formalities stipulated by the Will’s Act are observed. The minimum requirements are that the document be in writing, bare the signature at the end of the document of the person making the Will (referred to as the testator) and that that signature must be placed on the document in the presence of two witnesses who sign the document themselves attesting to the signature of the testator and each other. (In other words, all three persons – the testator and the two witnesses - must all be present at the same time. Failure to observe this formality will invalidate the Will.)

Wills can be simple or complicated documents, depending on the circumstances of the person making the Will, including the nature of the testator’s assets, and the circumstances of the persons to whom they otherwise wish to provide for or benefit. Wills can include the creation of trusts which provide that assets be retained by an estate for such beneficiaries as minor children or dependents with physical or mental handicaps, until the occurrence of some event, such as a minor child reaching the age of majority, or the death of an otherwise dependent adult child.

There is a mistaken believe that only persons with substantial assets need a Will. A Will can do more than just stipulate who is to receive a person’s property following their death. Such a document can also appoint a legal guardian for minor children pursuant to the Guardianship of Children Act. Also, the costs and expenses of administering a person’s estate by persons legally entitled to do so pursuant to the Probate Court Act in the absence of existence of a valid Will, are often significantly in excess of the costs and expenses associated with administration of a deceased persons assets (referred to as the deceased’s estate).

It is also a popular misconception that absent the making of a Will, a person’s property is inherited by the government (which occurrence is referred to as escheatment). In actual fact, Part II, sec. 22-30 of the Devolution of Estates Act prescribes the persons and order of succession to a the assets of deceased person who dies without a Will (who is referred to as having died intestate).

While the persons and their respective entitlements to the assets of a deceased person prescribed under the Devolutions of Estate Act are sometimes the same person(s) who a testator might otherwise choose to benefit under the terms of a Will, this is not of necessity the case. In New Brunswick, subject to certain rights of dependents granted under the Provision for Dependents Act the court largely upholds testamentary freedom of a testator to decide whom and in what fashion, he or she will otherwise benefit from among the people who should be within their reasonable contemplation. See the link below regarding Contested Estates. [infra link]

Preparation of a Will is sometimes attempted by testator’s themselves by using a simple blank form obtainable from a stationary store or by the purchase and use of so-called “Will Kits” which are at times advertised on TV, Radio, or the Internet. The difficulty with such an approach to preparing a Will is that the testator is unable to obtain any specific advice in the preparation of their own Will that may be necessary to ensure that their estate plan is appropriate to their circumstances and the needs of their dependents, such as their spouse and/or children.

Also, mistakes are often made by persons in preparing their own Will arising from their lack of familiarity with legal terms that have particular meaning and consequences in estate law, the unintended effects of which errors are often only discovered after a testator’s death at a point in time at which the testator is powerless to correct, and which often engender additional cost to the administrator of the estate to attempt to remedy, if capable of being remedied at all.

Even if a testator is confident that their estate plan is sufficiently uncomplicated that they are considering prepare a Will, there are a number of pitfalls that a testator should be aware of including:

  • a person given a benefit under a Will (called a beneficiary) should never sign the Will as a witness as such act disqualifies the witness from being a beneficiary under the Will, (sec. 12 of the Wills Act such that any gift stated to be received by the witness/beneficiary would be lost to them (even though a beneficiary signing as a witness does not invalidate the Will itself); and

  • marriages which occur after the date of the making of a Will invalidate any Will made prior to the date of the marriage, unless the prior made Will states that it is being made in specific contemplation of the contemplated subsequent marriage including the person to whom the testator is contemplating marriage.

Because of the potential pitfalls of self-drafted Wills, it is highly advisable for anyone who is considering preparing their own Will to consult with a lawyer for advice specific to their needs and circumstances, including review of any draft Will prepared by a testator on their own behalf before it is signed. Such consultations with our offices are at no charge. The costs of a lawyer-prepared Will are usually based on a flat or fixed fee, and are surprisingly affordable given the serious consequences to a testator’s family of unintended mistakes. Our offices would be happy to answer your inquiries, provide a free initial consultation, and advise in advance of the costs of a professionally prepared Will to ensue your estate planning needs and intentions are safeguarded.

 

Estates

The property of a deceased person, whether personal property (such as money on deposit with a bank or investments such as GIC’s [Guaranteed Investment Certificates], investments in stocks and bonds) or real property (such as a house and land), of which he or she remains the legal owner of, or entitled to an interest in, after their death, constitutes their estate.

It is necessary for someone on behalf of the deceased to administer the estate, by:

  • gathering into the administrator’s care and control the assets of the estate, including making application for any assets or benefits that they estate may be entitled to such as the proceeds of insurance, and apply for such benefits as the Canada Pension Plan Death Benefit if the deceased was eligible;

  • determining what legally valid debts are owed by the estate, including any income tax liability the deceased owes in the year of his or her death;

  • file the necessary tax returns to confirm amount of tax liabilities and remove the deceased from the tax roll to prevent the need for filing of future tax returns;

  • Payment of the legally valid debts of the estate, in order of priority (in descending order, the legal expenses, court fees, administrator’s fees, and then legally valid debts);

  • Preparing an accounting for the beneficiaries of the estate of the administrator’s handling of assets and payment of debts, and the proposed distribution of the assets;

  • Once the approval of all the beneficiaries is obtained, a final distribution of the estate’s remaining assets can be made and the administration of the estate concluded;

  • If the approval of the administrator’s accounts is not received from all of the beneficiaries, it is open to the administrator to apply to the probate court for an order by the court approving the accounts as well as the proposed distribution, following the delivery of which remaining property to the designated beneficiaries, the administrator is discharged from any further liability to either creditors or beneficiaries.

While the obtaining of a grant of letters probate of a Will or letters of administration of an intestate estate may well be within the competence of an administrator to obtain acting on their own behalf, where the advice and assistance of a lawyer to the administrator becomes critical is in ensuring that in carrying out their duties the administrator does so in a manner that is immune from claims of liability either by creditors or named beneficiaries. It is imperative that before an administrator seeks to finalize an estate by making a distribution of the estate’s assets that they do so only when and in a circumstance where the act of doing so will result in the administrator being legally discharged from further responsibility. The only way this can be accomplished for a certainty is by properly passing accounts which is typically not within the general experience of an administrator to accomplish without assistance from a lawyer.

 

Probate

A lot misunderstanding surrounds the subject of Probate of a Will, both as to what it is and when it is necessary. Contrary to popular belief, probate of a Will is not always required, nor is it necessarily costly to obtain when needed.

Simply put, an application for probate of a Will is a court application to obtain an order from the Probate Court confirming that the original Will in the possession of the person seeking to be appointed to administer the estate is in fact a valid Will, and that the person seeking to administer the estate of the deceased is in fact authorized by the Probate Court to do so.

Wills are testamentary documents, meaning that the content of the Will only becomes legally valid upon the death of the person making the Will. At any time prior to the death of the testator, a maker of a Will is free to make whatever changes to an existing Will that they decide to make (which changes are incorporated in an amending document called a Codicil), which right to make changes includes the right to revoke an existing Will in its entirety. This is the significance of the words the Last Will and Testament of…

At times, some persons who hold assets which belong to the estate (such as a bank or trust company), or persons who are responsible for handling the transmission of assets to the estate (such as the transfer agent for publicly traded companies whose shares or bonds a deceased person might have been the legally registered owner of) will insist on receipt of a certified copy of the order of the Probate Court confirming that the administrator is in fact possessed with legal authority to receive on behalf of the estate from the bank or transfer agent the assets held by them. This requirement is often sought, regardless of the intrinsic value of the assets being administered.

On the other hand, sometimes the nature of the assets of the estate, such as real property like a house and/or land, and the specific directions of the Will, such as to transfer title to such asset directly to a named beneficiary, are such that there is no requirement for obtaining probate of the Will (which application is technically referred to as a grant of letters probate of a Will).

Legal fees for the legal services of lawyer for preparing the necessary documents to obtain a grant of letters probate of a Will are stipulated in Appendix B to the Probate Court Act Regulations, and the Probate Court filing fees for such are also prescribed by Regulations to the Probate Court Act and are a function of the value of the assets to be administered as part of the estate.

Such applications are normally submitted on legal size paper using the prescribed probate court forms which are filed in the appropriate probate court offices in the judicial district where the deceased died or had property.

Answers to frequently asked questions can be found on the Probate Court website.
The real challenge for most executors or administrators is not obtaining the confirmation of their authority to act by means of a grant of probate or administration, it is to know how to safely exercise this authority in the administration of the estate, and to complete the administration in a manner that does not expose the administrator to claims of liability either by creditors or beneficiaries.

The only manner of ensuring that the executor or administrator or the estate are not exposed to liability at the time of making a distribution is to pass accounts. This is the process by which an executor or administrator discloses to the beneficiaries such matters as: the nature and value of the assets of the deceased taken into the executor’s or administrator’s possession, an explanation of how such assets were handled, including what investment and return on investment was made of assets requiring such investment, what estate debts existed and were paid, such as funeral expenses and income tax liability, and what distribution of remaining assets is being proposed by the executor or administrator, based on the beneficiaries respective entitlements as directed by the Will of the deceased or pursuant to the Devolutions of Estate Act. A passing of accounts can be informal or formal, insofar as the former is handled privately between the Executor or Administrator and the beneficiaries, the latter by means of an application to the Probate Court. An informal passing of accounts can be made to the beneficiaries, who if satisfied can each sign a general release of the estate and executor or administrator, conditional upon their receipt of their legacy from the executor or administrator. If all beneficiaries sign such releases, the executor or administrator can then make a distribution without further formality. In the event of a failure by the beneficiaries, in whole or in part, to approve either the accounts or the proposed distribution by the executor or administrator, they are then authorized to apply to the probate Court for approval of the accounts and/or proposed distribution. An order of the Probate Court in disposition of a formal passing of accounts serves as a complete release and indemnification of the estate and executor or administrator, so long as the directions of the Court as to the approved manner of distribution of the estate are fully complied with. A lawyer can assist the executor or administrator with either a formal or informal passing of accounts, including preparation of the necessary releases.

 

Contested Estates

At times, issues arise in relation to estates that require the Probate Court to resolve, including such issues as Wills made at a time when the testator/testatrix may have lacked the capacity to make a Will due to mental illness or age and infirmity, or Wills made at a time when the maker of the Will was subjected to undue influence which prevented the Will from being an accurate statement of their testamentary wishes, where a person dies without having made a Will, or circumstances where the maker of a Will has failed to provide adequately for either a spouse or children, pursuant to the Provision for Dependents Act.

If you are of the belief that a Will may have been prepared and signed in circumstances where the capacity of the maker of the Will either lacked sufficient capacity due to illness or infirmity, or was made the subject of undue influence in the making of a Will, we provide a no-cost initial consultation to discuss these concerns and provide objective and realistic advice.

 

Disinheritance

In New Brunswick, section 2 of the Provision for Dependents Act states that:

2(1)Where a person dies and is survived by a dependant or dependants whose resources, taking into consideration everything to which the dependant or dependants are entitled under a will, on intestacy or otherwise on the death of the deceased, are not sufficient to provide adequately for the dependant or dependants, a judge on application by or on behalf of any or all such dependants, may, in the judge’s discretion and taking into consideration all the circumstances of the case, order that such provision as the judge considers adequate shall be made out of the estate of the deceased for the maintenance and support of the dependant or dependants.

In interpreting this statutory obligation on testators, the New Brunswick Court of Appeal in the Currie vs Currie (Estate), 166 N.B.R., 2d, 144, stated:

... In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires. The Common Law right to dispose of one's assets by will is deeply rooted and must only be avoided where there is a clear case made by the claimant.  Although a liberal interpretation must be favoured, some attention must be given to the fact that the freedom of testamentary disposition has not been abolished and that the word "dependant" has been retained in the Provision for Dependants Act: see Re Protopappas Estate at p.68.

If you are either a beneficiary, or as a spouse or child of the deceased, and have been excluded as a beneficiary under an estate, we would be pleased to provide an initial consultation at no cost to advise you of rights and entitlements in such circumstances.

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