Many of our clients have appointed members of McConnan Bion O’Connor & Peterson as executors and trustees of their estates, and we provide this service on a regular basis. The significant number of these appointments and the magnitude of some of the estates involved reflects on the integrity and the high regard in which the members of this firm are held by our clients. Executor fees can vary anywhere from 2% to a maximum of 5%. The average Executor fees at McConnan Bion O’Connor & Peterson are 3% to 3.5%.

We employ highly competent and efficient estate support staff who can provide a direct contact with executors and beneficiaries regarding the administration of their particular estate. This results in efficient and prompt service to the client and a high level of communication with the parties involved. We make it a point to keep the executors up to date on the status of the estate (ie: the length of time to obtain probate, and when a distribution of estate assets may take place).

Where a person has died without a will (intestacy), we assist members of the family or other interested applicants in obtaining letters of administration and advise on the administration of the estate to ensure that the estate is both administered and distributed in accordance with the Estate Administration Act.

McConnan Bion O’Connor & Peterson will give you sound advice and assistance in dealing with an estate. Whether you are a testator who wishes to discuss how we might assist your executors in administering the estate, or if you are an executor who is faced with the responsibility of administering an estate, we would be pleased to meet with you and discuss that matter with you. If you are a beneficiary under an estate and are unsure of your rights, we can give you advice in that regard also. For more information on estates turn to our question and answer section on estates.

Many of our clients have appointed members of McConnan Bion O’Connor & Peterson as executors and trustees of their estates, and we provide this service on a regular basis. The significant number of these appointments and the magnitude of some of the estates involved reflects on the integrity and the high regard in which the members of this firm are held by our clients. Executor fees can vary anywhere from 2% to a maximum of 5%. The average Executor fees at McConnan Bion O’Connor & Peterson are 3% to 3.5%.

We employ highly competent and efficient estate support staff who can provide a direct contact with executors and beneficiaries regarding the administration of their particular estate. This results in efficient and prompt service to the client and a high level of communication with the parties involved. We make it a point to keep the executors up to date on the status of the estate (ie: the length of time to obtain probate, and when a distribution of estate assets may take place).

Where a person has died without a will (intestacy), we assist members of the family or other interested applicants in obtaining letters of administration and advise on the administration of the estate to ensure that the estate is both administered and distributed in accordance with the Estate Administration Act.

McConnan Bion O’Connor & Peterson will give you sound advice and assistance in dealing with an estate. Whether you are a testator who wishes to discuss how we might assist your executors in administering the estate, or if you are an executor who is faced with the responsibility of administering an estate, we would be pleased to meet with you and discuss that matter with you. If you are a beneficiary under an estate and are unsure of your rights, we can give you advice in that regard also. For more information on estates turn to our question and answer section on estates.

McConnan Bion O’Connor & Peterson can advise you on whether a Power of Attorney is appropriate for you and the ramifications of executing a Power of Attorney in favour of another family member or close friend. We can also discuss the new Representation Agreements with you and provide you with information on what you could include in a representation agreement to give your representatives instructions on how to deal with not only your financial affairs, but also your person (ie: health care, hospital care, treatment, and so forth).

McConnan Bion O’Connor & Peterson can provide advice on estate planning, from such basic things as putting certain assets in joint names to minimize probate fees on death to more sophisticated tax strategies involving living trusts, gifting, estate freezes, and other tax planning initiatives. The purpose of personal planning is to make sure there is someone responsible that can take charge of your affairs in the event of your incapacity and to carry out and to manage your affairs in accordance with your expressed wishes. If we don’t take the most basic steps in our personal planning, we run the risk of leaving our affairs in a mess for our loved ones, and we invite the intervention of the Government in the form of the “Public Guardian and Trustee”, who may take charge of the management of our assets in a manner that we would not have wished were we still capable. For more information on personal planning matters go to our question and answer section.

“Wills kits” are marketed as a “one size fits all” solution to creating a will. The kit typically includes a preprinted form and instructions on how to fill it out. Unfortunately, life is not as simple a pre-printed form, a will needs to be tailored to meet each individuals particular circumstances. The “will kits” you see on television are marketed in one format to all parts of Canada, even though wills come under provincial jurisdiction and each province has a different set of laws and rules with respect to wills and the administration of estates. By having a lawyer prepare your will, you are ensuring that your will meets your individual needs and is valid and effective in British Columbia.

If you are thinking about using a “will kit”, you are taking a big chance that your wishes and intentions regarding your estate will not come to pass. To be effective, a will must use precise language that leaves no doubt about your intentions. Wording that is vague or conflicts with other wording in the will may give a result completely different than what you intended. This can lead to costly court applications to try to decipher what you really meant, and of course some beneficiaries may be disappointed at the result.

When you are making out your will you have to think about that other inevitability in life – taxes. A will that is professionally prepared will take into account the tax consequences of your death. A will that does not deal with your tax situation on death may make Revenue Canada one of your biggest beneficiaries! A will prepared from a will kit will not have the benefit of tax advice; when you are making out a will it is very important that you understand the tax that may be payable as a result of your death, and what legal steps may be available to limit the amount of the tax bill.

The way in which a will is structured is important. The wording in a will must not only be precise, but the various paragraphs dealing with the management and distribution of your estate must follow a particular order to be effective. While the forms and instructions in a “wills kit” make some attempt to deal with this ordering of the paragraphs, because you are completing it yourself, it is easy, through wording errors, to get the paragraph ordering wrong with unintended results.

Your will is one of the most important documents you will ever sign. It has to be right, because you’re not going to be available to make corrections! Approach the preparation of your will with the same caution that you would use in making a major purchase. Who is providing the product; what are their qualifications and are they prepared to stand behind what they are selling? The marketers of “wills kits” provide their product with lengthy disclaimers freeing themselves from any responsibility if the “wills kit” doesn’t work and your estate suffers a loss. A will prepared by a lawyer has the lawyer (and the lawyers insurance company) standing behind it. Finally, you should ask yourself: “Am I buying a quality product?” The “wills kit” may be the cheapest product on the shelf, but like any other purchase, you get what you pay for.

That takes us to the issue of cost. The “wills kits” currently marketed range in price from $69 to $99 depending on the source. You can also buy “do-it-yourself kits” at stationery stores for less. All of them have the same problems and dangers referred to above. What does it cost to have a lawyer prepare your will? That price will vary depending on the complexity of your particular situation. Most straight forward “husband and wife” wills cost a total of $295 plus taxes at McConnan Bion O’Connor & Peterson.
That is the price for:

(a) two wills, ( husband and wife) ;
(b) an initial, no charge discussion with one of our lawyers regarding your estate requirements, and a confirmation of the cost;
(c) preparation of a draft document for your review and comment; and
(d) second attendance to execute the will in final form.

While that cost is more than what you would pay for a “will kit”, you have the comfort of knowing that your will has been done properly and when it is acted upon, your wishes will be carried out.
While we would be very happy to have you use McConnan Bion O’Connor & Peterson for the preparation of your will, the real point of this article is to encourage you not to use a “will kit”, but to find a lawyer that you are comfortable with and have them prepare this most important document. By using a lawyer you will have the assurance that your estate will be handled in the way you want it to be handled and that your beneficiaries will receive what you intended. The cost differential is relatively small, and the peace of mind is well worth it.

Bottom line, avoid “wills kits”!

First of all, we make a full review of your Contract of Purchase and Sale and if you are obtaining a mortgage, we review the mortgage instructions, and we diarize crucial dates with respect to the closing of your purchase.

We then carry out a search of the title to the property at the Land Title Office and do a thorough review of all encumbrances that are registered against the title to the property, such as restrictive covenants, easements and rights of way. We will provide you with a preliminary report as to the title of the property and provide you with copies of all of the relevant encumbrances.

We also contact the proper taxing authority for the property to determine if there are any unpaid property taxes owing. As unpaid property taxes create a lien on the land, we will ensure, at the time of closing, that all past due taxes are either fully paid or you have received the appropriate adjustment to your credit.

We will also contact you prior to preparation of the transfer documentation to confirm the proper names of the proposed owners of the property and determine whether the property is to be registered as joint tenants or tenants in common.

In the event that there are any liens or encumbrances registered against the title to the property that must be discharged, we will contact the lawyers for the Vendor and make arrangements to ensure that those liens and encumbrances, such as a mortgage, are paid and discharged from the title to the property.

If you are financing your purchase through a financial institution, we will prepare the necessary mortgage documents on behalf of the lender and in this regard, we will ensure that we have informed both you and the lender that we will be acting on behalf of both parties and will obtain the consent from the lender and yourselves prior to proceeding.

We will also prepare the necessary property purchase tax return for filing with the Province of British Columbia at the time that the transaction is completed. If this is your first home you may qualify for an exemption from this tax. If you do not qualify, the property transfer tax payable will appear on the Purchaser’s Statement of Adjustments and is 1% of the amount of the purchase price of the property up to $200,000.00 and 2% for that portion of the purchase price in excess of $200,000.00.

If your purchase is a condominium, townhouse or strata titled property, we will review with you the strata plan, strata bylaws and any documents affecting or dealing with the common property to ensure that you are fully aware of all facets of the strata development, such as restrictions on rentals.

Once all documentation has been prepared, we will arrange for you to attend at our offices to sign all the necessary documents to complete the transaction. It is at this time that you will provide us with funds required to complete the purchase, which would include the legal fees and disbursements. In this regard, our office is pleased to provide you with a quotation as to the fees and disbursements prior to undertaking the task of transferring the title to the property.

GST may be payable with respect to your purchase if you are purchasing a new house or a lot purchased from a developer. No GST is payable on used housing. In the event that GST is payable with respect to your purchase, the amount of GST payable will be included on the Purchaser’s Statement of Adjustments and will be collected from you on closing. You may be entitled to a rebate in the event that you are purchasing a new home for your personal use, and we will assist you in applying for this rebate.

It is essential that you arrange sufficient fire insurance coverage on the property prior to completing the transaction and in the event that you have obtained a mortgage, it will be necessary that the insurance show the lender as a loss payee on this policy. Again, we will assist you and your insurance agent by providing all the necessary information in order to ensure that you have the proper insurance coverage.

On the closing day, we will register all documentation at the Land Title Office, including the transfer of title and your new mortgage. Once we have checked the title to satisfy ourselves that you have been registered as the owners of the property, we then obtain funds from your mortgage company and pay those funds, together with your down payment, to the lawyer for the Vendor, who in turn pays off the Vendor’s mortgage.

Quite often the date that you will take possession of the property will be a day later than the completion of the transfer of the title. If this is the case then we will notify you once the transfer has been completed and at that time, you can arrange to obtain the keys to the property from the realtor or the owner if no realtor is involved.

Once the transaction has been completed, we will provide you with copies of all of the documentation involved in the transfer, including the transfer of title, a copy of the mortgage, a statement of adjustments and copies of any encumbrances on the title.

The lawyers and the support staff at McConnan Bion O’Connor & Peterson are highly trained and experienced in all aspects of clients’ needs when purchasing a home, and we are confident that our firm will give you peace of mind that your interests are fully and completely protected.

“Work” is defined in the Act as “labour or services an employee performs for an employer whether in the employee’s residence or elsewhere”. People working at home that characterize themselves as independent contractors should make careful note of this definition of “work”.

If a person is an employee the provisions of the Act apply with respect to the agreement between that employee and his or her employer. The Act imposes minimum standards regarding hours of work, wages, breaks, overtime, holidays, work schedules, layoffs and termination. Statutory deductions from pay for income tax, employment insurance and CPP must be deducted from the employees wages, by the employer, and remitted to the appropriate authority together with the employer’s portion of the contribution, if applicable. Failure to do this can make the employer liable for those deductions.

Independent contractors work on a fee for service basis, they present their bill for the task completed and are paid. The independent contractor is responsible for his or her own statutory remittances for income tax, CPP and the like. When the task is done, the relationship between the parties is at an end. The minimum standards and benefits under the Act do not apply to an independent contractor.

There is no set formula for deciding if a person is an employee or an independent contractor. However, there are some factors that are repeatedly considered by the courts and other tribunals and agencies in making that determination:

1. Control - What degree of control does one party have over the other re deciding the task to be done, the way the task shall be done, the time frame to complete the task and the scheduling of duties. Where one party has significant control over the other, an employer employee relationship may be inferred.

2. Integration – Is the task being performed an integral part of the business or is it accessory to it (i.e. an infrequent or one-time requirement)?

3. Specific Result – An independent contractor is generally retained to achieve a specific result rather than provide an ongoing service.

4. Statutory Definitions – The definitions of “employee” and “work” will be considered in making the determination. If the particular circumstance falls within the definitions, a finding may be made that the individual is an employee, regardless of the presence of the other factors.

Businesses and other organizations should be aware of the pitfalls of using “independent contractors” in situations where the law may subsequently determine that those independent contractors are in fact “employees”.

Both Revenue Canada and the Employment Standards Branch can make determinations that have a significant financial and legal impact on organizations that have used independent contractors who were in fact employees. Retroactive liability for the employer’s share of statutory deductions and liability for employment benefits under the Employment Standards Act can result in significant and unexpected costs and penalties under the applicable statute.

This general interest article is not meant to provide specific advice to any particular situation. If you have a question about employment law or the “employee” versus “independent contractor” issue specifically, we encourage you to contact McConnan Bion O’Connor & Peterson for advice specific to your circumstances.

Frequently when a person decides their marriage is over they immediately think – I need a divorce. While it may in fact be true that they need a divorce this is not their true short-term need. In most cases a divorce is not even immediately available. A person ending a marriage really needs a separation agreement.

A separation agreement can govern all elements of the end of a relationship between separating spouses including but not limited to:

• a.where the children will reside and access for each parent,
• b. who will pay support and how much that support will be,
• c. how family property will be divided,
• d. how family property will be managed or sold, and
• e. how one or both parties’ pensions are divided.

Having a separation agreement sometimes is not enough, it is vital that the agreement be well drafted:

• 1. The agreement must be clear and unambiguous so both parties understand their rights and obligations under it. If the agreement is not implemented as you expected, you have not received the deal you bargained for.
• 2. The agreement must cover all necessary areas. Most separating couples rarely think of issues such as life insurance but this can be extremely important. If the payor (of support) were to pass away the recipient (of support) would lose their financial support entirely and the savings created when the children are in the care of the other party. Conversely if the recipient (of support) were to pass away the payor (of support) may be relieved of their support obligation but it is more than replaced with the obligation of being a full time parent with no financial or other form of support from the deceased parent. In the end, the result is that not only is the surviving party hurt but children suffer significantly by this lack of planning.
• 3. The agreement must create finality. To do so it must be able to survive a challenge in court. No one wants to settle a matter only to have to deal with it again at significant expense. Finality allows parties to plan their individual futures. While you can never be certain that an agreement will not be set aside by a court it is important to do as much to ensure that it will not. The more sound an agreement is, the less likely someone will take the risk to challenge it. This is important for two reasons:
  • a. An agreement will never be set aside if it is never challenged; and
  • b. If an agreement is never challenged no resources will be used defending it.

The best way to ensure the survival of an agreement is through proper legal advice and a well-drafted agreement.

All in all a separation agreement can do a number of things but its most important function is to enable people to move on with their lives. Ending a relationship is traumatic enough, but the added trauma of not knowing your financial obligations, resources and when you may or may not see your children magnifies the difficulty. Settling these issues allows a person to look forward in their life and begin to build a future. Once an agreement is reached parties know their responsibilities, their entitlements and what matrimonial property they are left with.

At McConnan Bion O’Connor & Peterson we can help you navigate through this process. We can draft separation agreements, negotiate separation agreements or give legal advice on a separation agreement. We make the legalese of these agreements legaleasy.