Estate Planning & Risks of Joint Tenancy

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Estate Planning – Considerations when Adding a Child as Joint Tenant to your Property

Many parents put their children on title to their residence as a form of estate planning. While this can help avoid probate fees and possibly assist with ease of administration of an estate, the case of Gully v. Gully, 2018 BCSC 1590 [Gully], demonstrates that parents must be careful when adding children onto title to their residence.

In Gully, a mother added her son as a joint tenant on title to her Burnaby property. She did so based on legal advice she received, including that her estate could avoid probate fees. She did not tell her son that he had been added as a joint tenant to title of the property.

In August of 2017, the son, and his company, consented to a judgment of $800,000.00 in favour of Ledcor Construction Limited (“Ledcor”). Ledcor discovered that the son was on title to the property and registered their certificate of judgment on the son’s undivided half interest in the property.

The mother sought a declaration, amongst other things, that the son held the property on a resulting trust for her estate. The court found that the son did not hold the property on a resulting trust for the estate and permitted Ledcor to retain their judgment on title, ultimately stating:

 [24]        Ms. Gully took a risk in registering her son as a joint tenant on her property. Whether she was properly advised of that risk is not before me. However, once she made the decision to register an interest in the Burnaby Property in Mr. Gully’s name, third party creditors of Mr. Gully became entitled to register judgments against Mr. Gully’s interest in the Burnaby property.

If you would like to book an appointment with any of our estate planning lawyers, please contact Heath Law LLP at
250-753-2202 or TOLL FREE: 1-866-753-2202.

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Family Law – Protection Concerns / Family Violence and Judicial Case Conference (JCC)

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When attending a Judicial Case Conference (“JCC”), the parties and their lawyers (if any) will attend Supreme Court to try and work out any matters which the parties can agree on or consent to.  The Court will make procedural orders, even if not agreed upon by the parties (for example, a deadline by which Lists of Documents need to be exchanged, or a deadline for disclosure of certain documents).  A JCC is necessary before a party can bring an interim application (though there are exceptions in emergency or urgent cases).

JCCs can be daunting for some parties to family litigation since this may be the first time a party will be in the same room or vicinity as a former spouse.  The matter may be complicated when there are protection orders or where there are concerns with respect to family violence by one of the parties to the proceedings.

The Supreme Court does not have access to Provincial Court files as a matter of course, which may contain a protection order.  Therefore, if you have concerns with respect to safety at a JCC (due to a history of family violence or because of a significant power imbalance), it is imperative that you notify your lawyer of your safety concerns as soon as possible before the JCC or, if you are representing yourself at the JCC, notify the Registry staff of your concerns as soon as possible.

If necessary, the sheriffs will ensure that a sheriff is present during the proceedings.  The Judge or Master will also be made aware of your concerns and can prevent you from having to sit facing the other party at the JCC.  This will help protect you and the presiding Judge or Master against any violence by the other party to the proceedings.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Estate Litigation – Loss of a Family Member Conflicts

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When dealing with the loss of a family member, there can often be conflict or tension with other people who were also involved with the deceased. In such cases, estate litigation issues may arise because certain people may feel that they have not received a fair portion of the estate or they claim that other people took advantage or put pressure on their loved one. Estate litigation claims affect or involve all beneficiaries, trustees or executors.

When Does an Estate Litigation Claim Arise?

An estate litigation claim may arise to deal with a number of issues, including:

  • claims suggesting that the deceased/will-maker lacked mental incapacity when making a gift in a will;
  • elder abuse arising from undue pressure or influence that have resulted in unfair or inequitable bequests;
  • disinheritances of children or spouses that may or may not be upheld by a Court;
  • insufficient or unfair bequests to children and spouses; and
  • contested trusts.

Resolving the Issue

Estate litigation often increases conflict and tension between family members. For this reason, although it may not always be possible, it is important to resolve these issue as quickly as possible. Instead of litigating these claims in Court many families choose to resolve an estate litigation issue through alternative dispute resolution, such as mediation.

 

If you need legal advice regarding estate litigation click here to contact us or to schedule an appointment.

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