ASK A LAWYER: What happens when 2 executors can’t agree?

What are the rights and responsibilities of executors?

“My cousin wants a car from the estate of our recently-deceased, not-wealthy uncle. One of the executors of our uncle’s will is willing to give him a pretty good price for the car, just to get rid of it, but the other executor says they should sell it on Craigslist where they’ll get more money for it. Meanwhile, my cousin’s mother says he should get it for free, since ‘it’s family’. 

Who’s right? How should this sort of thing be resolved?”

The first thing to remember is that executors have a duty to all the beneficiaries of a will until all the beneficiaries affected by that will agree otherwise. In other words, an executor’s responsibility is to make decisions that will best benefit all beneficiaries of an estate.

In the case of a car to be disposed of by the estate, the terms of the will should dictate what happens: Sometimes a will specifies to whom the car is to be left; sometimes a will specifies that a beneficiary should be given preferential treatment regarding the purchase of the car from the estate. In the absence of such direction, it’s up to the executors to sell the car in a way that best benefits all beneficiaries – so Cousin Bob shouldn’t be allowed to purchase the car for $500 if the car could obtain $10,000 on the open market, unless all beneficiaries agree that this is acceptable.

However, the responsibility to obtain a beneficial value should not be excessive and co-trustees shouldn’t let a personal dispute get in the way. If Cousin Bob is prepared to pay a reasonable sum for the car – such as $9000 – then the beneficiaries may be consulted, and consideration may be given to the fact that holding out for a higher sum on Craigslist may mean increased storage, maintenance or financing costs. A relatively easy, early disposition of an asset may put money in the hands of the estate to earn interest or reduce borrowing charges.

There isn’t always a clear-cut answer to questions like this. Trustees have an obligation to respect the intentions of the testator and to act in a way that best benefits the heirs.

Questions? Don’t hesitate to get in touch.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province.  

 

ASK A LAWYER: When should I go to small claims court?

A possible remedy for civil cases that aren’t required to be in another court.

Timothy N Sullivan Ottawa lawyer answers questions

The Small Claims Court jurisdiction permits cases of a total amount value of $25,000 plus interest, plus costs. (This value was raised from $10,000 in 2010 in an effort to move more cases to what is often referred to as “the people’s court”.)

Almost every kind of civil case can go to the Small Claims Court unless some specific rule or statute requires the case to go to the Superior Court.

Any contract dispute or negligence claim, trespass and most other civil matters can be brought in Small Claims.

Cases that cannot be brought in Small Claims are construction lien actions; cases involving custody of and access to children; most Family Law matters as between married spouses; and cases that require one or both parties produce an accounting. These are reserved for other courts.

If you have a civil case that does not have to be in another court, it is usually preferable to proceed through Small Claims, where lawyers are not required and the rules are written for non-lawyers.  The process is streamlined by requiring upfront disclosure of all important documents and a court appearance where further documents may be ordered.  Examinations for discovery are not permitted – but neither is a motion for summary judgment.

A key advantage is that the cost of filing in Small Claims is lower than in the Superior Court of Justice for civil matters.

In Small Claims Court, if a party is unrepresented but successful in the action, the rules permit about 15% of the amount of the claim (not the amount of the award), to be ordered in costs even if the winning party did not incur legal expenses. (There are ways to increase the costs above 15%.)  However, this rule can also be a negative if you use a lawyer, as legal fees in that case will typically be higher than what can be recovered in costs in Small Claims.

If you are uncomfortable acting on your own, paralegals who are regulated by the Law Society of Upper Canada are permitted to appear in Small Claims.  Under special circumstances a party may have someone assist in the case if they are not actually acting for that person.  This means only a lawyer or a paralegal regulated by the Law Society may provide legal advice and represent a party in the Small Claims Court.

One advantage of proceeding in the Small Claims Court is a provision about its authority in the Courts of Justice Act.  Section 25 provides that the Small Claims Court shall hear, in a summary way, the questions of law and fact before it, and are to make orders “as is considered just and agreeable to good conscience”.  While the Superior Court has a similar jurisdiction called ‘equitable’ jurisdiction, Section 25 may be considered to provide some flexibility to the judge in Small Claims Court to apply some ‘common sense’ that a strict reading of the common law may not strictly authorize.

More questions?  Don’t hesitate to contact us.

 

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province.   

ASK A LAWYER: What are my rights regarding ad hoc extra child support payments?

Special and extraordinary expenses for children

“My ex-wife said our daughter had been accepted to a prestigious, but expensive, dance camp. So I gave her $3000 as half of the tuition – but now I’m almost positive my daughter never actually went to the camp. What should I do?”

Special and extraordinary expenses are governed by Section 7 of the Child Support Guidelines. Typically, these items would be covered by this section:

  • Medical and dental expenses
  • Daycare or after-school care
  • Extraordinary expenses for elementary school education or programs
  • Extraordinary expenses for post-secondary education
  • Extraordinary extracurricular activities

An agreement – made during the divorce proceedings – would usually cover how a Section 7 expense is to be incurred and how the parties deal with it. Generally, they are paid in proportion to income.

Guidelines allow estimates to be considered, taking into account the necessity of the expense and the reasonableness given the means of the parents. If an expensive dance camp is within the means of the parents, and is in the child’s best interests, a court may order a parent to pay the proportional amount.

If a payment is made voluntarily or in accordance with the provisions of a separation agreement, but is never in fact incurred, then the funds should be returned or credit given to the paying spouse for future, legitimate expenses.

Best practices, when you’re just trying to do the right thing

Regardless of your relationship with your former spouse, it’s natural for a parent to agree to an extraordinary expense – even a large one like this – when you know it will be meaningful for your child. And that’s a great impulse.

If you are certain that you were ‘duped’ into paying the extra $3000, you can pursue remedies via the court based on Section 7. But a pinch of prevention is worth a pound of cure. So here are some ways you can make sure that the money you provide is applied to the expense described:

  • Tell the other parent that you wish to be consulted in advance of any large extraordinary expense
  • Request some documentation in writing, as appropriate (presumably, for a dance camp, there will be a fee schedule in a brochure somewhere)
  • Request a receipt for the amount paid (for tax purposes, you’ll want to have receipts for child-related expenses anyway – this should not be perceived as a hostile request)
  • Offer to pay your share directly to the organization involved (i.e. the dance camp)
  • Use a form of payment that can be tracked later if necessary. Providing cash is not recommended

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed lawyer in your province.  

 

From DivorcedMoms.com: What lawyers want you to know about your divorce

Timothy Sullivan tips for divorce

Most of us think we know a lot about divorce from the media or watching others go through it, and often the focus is on the emotional strain, which is difficult for everyone. But even an amicable divorce involves legal ramifications, and there really is no substitute for professional counsel when it comes to that part of divorce.

This week, we joined other lawyers from around the world to share our advice from the front lines of divorce proceedings on the DivorcedMoms website.

Divorce is foreign territory to most who enter it. Friends and family can offer welcome support; but, at many times through the process, it is the wisdom and guidance of a legal professional that is the most valuable. Attorneys, after all, are the trained experts who help us navigate the rather intimidating mountains of forms and court proceedings to assist us in dissolving our dysfunctional marriages.

Lawyers have seen it all! Every imaginable kind of divorce, both amicable and vicious, with every set of circumstances have found their way into the offices of divorce attorneys.

What would the legal experts who have helped hundreds of couples end their unions like the rest of us to know?

Several top divorce lawyers shared the wisdom they wish all of us knew and would heed as we initiate divorces. Take these golden nuggets of advice to heart because they could save you time, trouble, and agony in the future!

You have the power to make your divorce less complicated and expensive!

Every divorce is unpleasant and will require a financial investment to pay for legal expenses; however, if you are cooperative, prepared, upfront with important information, and focus on the intended outcome, you can make the process less painful!

Corrie Sirkin, a family lawyer from Lesnevich, Marzano-Lesnevich, & Trigg in New Jersey shared: “for alimony and equitable distribution, your divorce is financial, not personal. If you provide your attorney with more information and proof; then you will get better advice and your divorce will cost less. Get copies of all financial documents possible and make a list of accounts, debts, and balances. Make a budget of what your family spends now and a proposed budget. Be thorough and accurate.”

Jason Kohlmeyer of Roko Law Office in Minnesota echoed Sirkin’s advice by stressing the importance of staying organized, having a plan, and creating a budget to save money on your divorce. He quipped “whose kids do you want to put through college? Yours or your lawyer’s?”

Think about that! Is a battle to the death with your ex over every last detail of your case worth sacrificing the future financial security of you and your children?

Put your legal representation to work for you!

Ottawa-based attorney Timothy Sullivan, of Sullivan Law, urged “if you hire a lawyer, speak through your lawyer on all legal issues and money matters including custody, access, property, pensions, support, and child and home expenses.”

Doesn’t it make the best sense to let the expert, who you have enlisted to bring you a successful outcome in your divorce, be the one to communicate about all of these sensitive issues? Your lawyer knows just how to phrase important information to preserve your best interests, so speaking without your representative’s assistance could result in miscommunication or complications to your case. Sometimes it’s best to know when to let the one who went to law school do the talking!

For more information and to read the rest of this (pretty helpful) piece, please visit the Divorce Warrior column on the DivorcedMoms site.