When I got Sirius XM Radio in my ride I stopped listening to talk radio on my commute and switched to satellite radio’s Fabulous Fifties channel instead. Now I groove my way to the office awash in the smaltzy lyrics of a simpler age. Continue reading “Goin’ to the Chapel—”
An Executor’s job has never been an easy one, stick handling through the paperwork and bureaucracy to wrap up a deceased’s affairs while all the while dealing with the foibles and expectations of impatient beneficiaries.
It seem that every one is a critic when it comes to the disposition of the big-ticket items in the estate, the house, cottage or business, and the sniping doesn’t stop when dealing with the small stuff like the picture over the mantle and the costume jewellery.
The advent of crypto-currencies gives beneficiaries yet another golden opportunity to throw stones at beleaguered executors, who typically are walking blindfolded into a minefield when they enter the Alice-in Wonderland word of Bit-coin and Ethereum
An executor is charged with liquidating the assets of the estate in a careful, prudent and timely manner. More easily said than done in a world where asset values fluctuate constantly. Executors have long wrestled with decisions such as -” do I list the house for sale now, or wait til the spring, in hopes the market will continue to rise ?”. Lawyers, recognizing the problem of constantly changing asset values , usually include clauses in wills empowering executors to retain assets such as stocks and other securities in the form in which they were found at the date of death. Still, an executor is playing “hot potato” while holding onto any assets whose value can slide. Beneficiaries don’t want apologies they want cash!
Enter the era of digital currency – would it be an exaggeration to say that never before in the history of mankind has a more mercurial asset class existed? ( well, maybe tulips, during the infamous ‘Tulip mania’ bubble in fifteenth century Holland – but that’s another story !) From a 2014 value of around $120 the coin skyrocketed to an $18,000 high last December, before taking coin holders on a breathtaking roller coaster ride during 2018. A month ago a coin was worth over $6,000 while today, a month later , it trades at half that value.
So what’s an executor to do? how do you make a prudent business decision when dealing with a completely new class of asset, that you don’t understand, that fluctuates wildly in value? One wrong move and you are dead meat, and liable to be devoured by ravenous beneficiaries.
It’s certainly something to think about, when you get the phone call from that nerdy friend who dabbles in crypto currencies asking if you would mind being his executor. ( and,m if you are that nerdy guy, could you do every one a favour by liquidating your crypto – currency positions before you shuffle of your mortal coil?)
As the days grow short, rain rattles against the window panes and Christmas carols take over the Muzak in the mall, normal people start their Christmas decorating and baking while we lawyers, ever marching to a different drummer, lumber into action in a mad dash to complete our mandatory annual CLE credits.
In order to maintain our ability to practice for the coming year we must do several things: refrain from getting caught committing any indictable offenses; pay the law society an inordinate sum for fees, and lastly, provide proof of attendance of at least 12 hours of “lawyers school.”
Not being one to leave things until the last minute I resolved this year to bag all my necessary educational credits well before the 30 November deadline-whole days before, so I signed up for a course about what’s new and exciting in the world of wills and estates.
To my surprise I found the course most instructive: indeed I learned a lot about marriage. Now having been a husband for almost 40 years now, I thought I knew a thing or two about the institution-I even consider myself partially house broken; but, it seems there is always more to learn.
When I began my own journey into wedded bliss, a formal walk down the isle was the sole precursor to asserting any claims at all against the property or income of a significant other, in the event that things didn’t work out, and marriage was defined as “the union of one man, and one woman, for life.” Pretty simple, straightforward stuff, that even a poor country lawyer could suss out.
Nowadays, as a result of the Family Law Act, the Wills Estates and Succession Act, the Charter, and a handful of other legislative changes, as interpreted by recent court decisions, its a whole new ball game. In modern times, one can, it seems, slide into matrimony without even knowing it!
Distinctions between “formal” and “common law ” marriages have long since been consigned to the dust bin, along with any notion that your spouse need be someone of the opposite gender. One can acquire significant support obligations in any relationship that endures for longer than two years, and a claim against some pension benefits can be advanced after only a year of togetherness.
The courts now instruct us that we need to run through a bit of a checklist of activities to determine if two people seen hanging out together may in fact be married in the eyes of the law. Are they doing things that suggest they are in a “marriage -like relationship”?
Do they live together, sleep together, pool their finances, vacation together, own things together, bicker, or complete each others sentences ? Now here’s where recent judicial pronouncement make it interesting. Courts have ruled that you no linger have to live together, or have sex, or pool your resources in order to be deemed to be married. You can inadvertently acquire a spouse if your relationship ticks a sufficient number of “marriage-like relationship” boxes.
This can be a big deal if you happen to die without a thoughtful estate plan in place, since your “spouse” steps to the head of the line to claim a big chunk of your estate, as well as life insurance, pension benefits, RRSP’s and the like. For most, their long term relationships are sufficiently “marriage -like” so the question doesn’t come up, but for many, it does. Consider seniors who acquire companions late in life, never thinking that their friend might displace their children for a share of their estate or those whose time together is punctuated by long periods of separation, or those who fall into long distance relationships.
We live in interesting times- it didn’t used to be so hard to tell if you were married !
There is nothing like a day long seminar on the intricacies of wills and estates to set the mind adrift to wander freely amongst half forgotten stanzas of classical poems. It happens to me every time.
Last week it was a reference to the proper drafting of clauses pertaining to the disposition of a testators ashes (yes, we lawyers actually attend seminars about such things!) that transported me instead to the words of Lord Macaulay’s famous Horatius at the Bridge:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds
For the ashes of his fathers
And the temples of his gods?”
How indeed! In a modern world characterized by multiple marriages, and blended families, the custody and disposition of a person’s ashes takes on increased importance, if for no other reason than that their existence creates a flash point in disputes between first, second or even third families. Sometimes an Horatius is needed to guard those ancestral ashes.
I recall a bitter, bitter case I had as a young lawyer that pitted an estranged wife against a new girlfriend (my client) over pension benefits and the like. At one point in the proceedings a demand was made upon my client to surrender the ashes of the deceased husband/boyfriend. She responding by mixing them up in a bowl of porridge and eating them, then later in court turning to her rival to announce with a Cheshire cat grin exactly what she had done. Where is Horatius when you really need him?
Recently a marathon family mediation session at our office, involving a daughter ( by a first marriage) and a wife (by a second marriage) finally settled, with the tipping point being a concession as to the custody of the ashes of the deceased.That one issue loomed much larger to the parties than the considerable sums of money that were in play in the negotiations.
The law offers one precious little guidance when such disputes erupt – who has the greater right to say where a person’s ashes should be scattered – the deceased’ children, or their current companion or spouse? Its the sort of issue judges are loathe to tackle- tending to growl at counsel to step out into the corridor and sort it out between themselves. The topic comes up more than you might imagine, we know, from the parade of disgruntled heirs that seek consultations with us.
I probably should have paid more attention in the seminar, and less time mentally reciting poetry, since the best solution is advance planning and proper will drafting. If your Facebook status reads as “Its complicated”, or even if you are just working on your second marriage, as pretty much everyone is, you probably should give some thought as to whose mantle you want your ashes to live on after you pass. At the end of the day, the decision will rest with your executor, who will be bound by what you have stipulated in your will.
Remember that your cremains may have extraordinary sentimental value to your children, as well as your current companion, so it is a decision that should not be taken lightly, and once taken should be fully recorded in your will, and also discussed with your executors during you lifetime..
But, if you simply want to piss everyone off, or really can’t decide who should have them, consider blowing your entire estate in order to have your ashes launched into space in a space burial. There are at least two companies, Celestis and Elysium, that for a very handsome fee will launch tour cremains into outer space ! No ashes, no money left in the estate- no problem! ( Sorry Horatius, modern technology may have made you redundant)
At Darnell & Co we do a lot of estate planning and wills drafting for clients, so inevitably we come across testamentary requests that are just a little off the wall. Alas, as juicy as some of them are, professional ethics prevent us from talking about them.
Once probated however, wills become public documents, so we are allowed to snicker at some of the bizarre provisions that find their way into the last wills of the rich and famous.
Charles Dickens, for example, was a man after my own heart (and not just because of my favourite line in A Christmas Carol “Are there no prisons? are there no work houses ?”) Like me, Dickens abhorred the attire which most funeral goers affect, so his will stipulated the at “Those attending my funeral wear no scarf, cloak, black bow, long hat band or other such revolting absurdity”
And then there was famous escape artist Harry Houdini, who apparently thought he had a shot at escaping death itself. His will required his wife to conduct a seance each year on the anniversary of his death, so that he could communicate, in code, from the other side to let her know that his greatest escape had worked. She gave up after ten years , but apparently the tradition endures to this day.
Lawyers are amongst the worst offenders when it comes to weird wills. Take T.M. Zink, for example. An Iowa lawyer who died in 1930- he had a wee problem with women, leaving nothing to his wife, only $5 to his daughter, and the rest of his estate to build a “Woman-less library” not only would no women be allowed, but only books by male authors would be displayed! (As a lawyer he should have known the will would be challenged -it was, and the library was never built)
Canadian lawyer Charles Millar created a “baby derby’ when the details of his will became public. He gave his entire fortune to the Canadian woman giving birth to the most babies in the 10 years following his death (the derby ended in a four way tie between a quartet of women who each produced 9 offspring)
Lastly, we have American super -patriot Solomon Sanborn, who requested, in 1871, that his skin be made into two drums, one inscribed with Pope’s “Univesal Prayer”, and the other with the Declaration of independence, and further stipulated that the drums should be used each June 17th to beat out the tune of “Yankee Doodle ” on Bunker Hill!
I must say, the provision I made in my very first will, that I be given a viking funeral using the leaky sailboat I briefly owned as a law student, pales by comparison!
The news following Aretha Franklin’s recent passing that she had left a very substantial estate with no will, and without making adequate provision for a special-needs child, left me shaking my head. I guess I always thought that behind any celebrity was a team of professionals; agents, managers, accountants and lawyers, making sure their affairs were in order. It appears not.
Ever curious, I decided to poke around a bit see if I can uncover any other estate planning disasters of the rich and famous and I didn’t have to look very far.
Pablo Picasso, one of those famous artists of all time died a very wealthy man with a huge inventory of artwork stuffed in his château, and remarkably without a will. He reportedly steadfastly refused to ever make one.
Picasso had a famously convoluted love life, with two wives, many mistresses and number of children born both in and out of wedlock. his refusal to make a will left his estate in an absolute mess which took some seven years and the expensive assistance of a number of lawyers to sort out. In the end result, the clear winner was the French government which walked away with the lion’s share of the estate in death duties.
Indeed, for a time it appeared that only his eldest son would inherit, and it was only due to a posthumous modernization of French intestate succession law that his other children eventually received anything.
Quelle mess! It can’t have been what the great man intended .
One of the most expensive documents an individual will pay to have created during their lifetime is a will. Usually many hours of agonizing thought go into the process, not even counting the multiple trips to the lawyers office to complete the task. So it is astounding how frequently those expensive documents go missing.
As lawyers we are evangelists for the will making process, since we know better than most the pitfalls of dying without one. Without a will you risk a portion of your estate going to unintended or unworthy beneficiaries and your estate will be administered by those not of your choosing. We conclude every wills signing ceremony with the admonition to make sure that the will is kept in a safe place preferably a safety deposit box or fireproof safe, and even have the client sign a form advising where the will is going to be kept. What then could possibly go wrong?
A more or less weekly occurrence is a sheepish inquiry from a wills client, wondering if it is really, really necessary to have the original will, ( yeah, in most cases it actually is ) as they seem to have misplaced theirs. In the result, we do a brisk business in re-printing and re-executing wills, at least, in the happy circumstance where the loss has been discovered during the lifetime of the testator, and while they still have enough of their marbles intact to make a will.
WESA. our new wills and estates law has eased the situation a bit, allowing us to sometimes probate a copy, or in some cases even a draft of a will, but there is always a risk, and there certainly is additional expense involved. Far better to have an original will to present to the probate clerk.
So why do people make it so hard on themselves (or, more precisely, on their recently bereaved family)? I have been involved in probate files where the original will had been squirrelled away under a wood pile, hidden in a freezer, cleverly concealed under wall to wall carpet, even buried in the garden, and many others where it was never found at all. More than once helpful family have descended on a senior’s home, and in a de-cluttering frenzy, have thrown out many of the senior’s personal papers, original will amongst them. Sadly, frail testators, struggling with the onset of dementia, are prone to doing the same.
The moral to the story ? listen to your lawyer, dammit, when they tell you to stash your will in your safety deposit box- that’s what they are for !