The Honourable Robert D. Punnett and the Honourable Peter M. Willcock have been appointed to the Supreme Court of British Columbia.

Mr. Justice Punnett served as a Bencher for Prince Rupert County until his appointment on June 19. He also served two terms on the Canadian Bar Association (BC Branch) Provincial Council and on the board of directors for the Trial Lawyers Association of BC. He was appointed Queen’s Counsel earlier this year. He was a partner in Punnett & Johnston of Prince Rupert until his appointment.

First elected a Bencher in 2006, Justice Punnett served on several Law Society committees and task forces during his time as a Bencher. Law Society President Gordon Turriff, QC congratulated Mr. Justice Punnett on his appointment. “This is great news for the people of BC,” said Turriff. “Mr. Justice Punnett has all the qualities communities want a judge to have — he’s thoughtful, a good listener and measured in his responses.”

Mr. Justice Punnett replaces Mr. Justice D.A. Halfyard in Prince Rupert.

Mr. Justice Willcock practised with Harper Grey LLP from 1983 until his appointment. He was a member of the insurance, health and professional regulation practice groups, having chaired the insurance group for several years. Mr. Willcock contributed to a number of professional education courses and publications. He also served on the Board of Directors for the Continuing Legal Education Society for many years.

Mr. Justice Willcock replaces Mr. Justice L. Paul Williamson in Vancouver who elected to become supernumerary judge as of January 28, 2009.

Heritage Law, a boutique firm located in West Vancouver, BC, requires an administrative assistant 3-4 days a week. We would prefer a graduate of the Capilano University Administrative Assistant program or equivalent. Experience in wills and estates, corporate records and family law is helpful. The compensation is $20/hour or $28,000/year salary range.  We are a collegial firm and are recognized for offering superior work/life balance.

Please forward your resume, transcript and references to Nicole Garton-Jones at nicole@bcheritagelaw.com.

See www.bcheritagelaw.com for more information on our firm.

Explaining complex family law concepts and procedures in a jargon-free style, this resource includes detailed information on how family court works, offers easily understandable case examples, and describes alternatives to litigation that are designed to help prevent families with children from entering the legal system to resolve disputes. Exploring subjects that apply to all parties involved in resolving separation, divorce, and custody conflicts-judges, lawyers, mediators, parenting coaches, psychologists, family counsellors, and social workers-this reference demystifies the role of lawyers and judges, debunks the myth that parents can represent themselves in court, and examines each parent’s responsibility to ensure that post-separation conflicts are resolved with minimal emotional stress to children.

This book is written by Ontario family court judge Harvey Brownstone, specifically for the general public. It is not a legal textbook or self-help manual. Rather, it provides much-needed information for every separated couple contemplating going to family court to resolve parental disputes. The book explains what family court is, and equally importantly, what it isn’t. The author uses many real-life anecdotes to show the reader how harmful family court is for families, and how bad litigation is for children. Family court litigation is not like the court cases we see on TV, and the judge gives strong reasons why people need legal representation from a lawyer who specializes in family law. There is a strong desire on the part of the author to convince people to use family court as a last resort, and consider dispute resolution alternatives such as mediation or collaborative law.

Family Law Dispute Resolution Options for Clients Presentation Slides

Presentation Slides for Heritage Law Speaking Series Event

May 27, 2009, 8:00am to 9:00am at Capilano Golf & Country Club

Stansfield died last week at 57, after six years of being treated for cancer. I interviewed him five times in the past three years and was always struck by his passion for justice and his desire that every person and every community have access to it. His desire to create the best justice system possible is now his legacy.

When he became chief judge in 2005, Stansfield brought a new feel to the office. We didn’t hear much from judges, never mind the top provincial court judge. Stansfield changed that, making himself available to media throughout the province. He was as happy to be interviewed by the Nanaimo Daily News as go on radio or TV.

As associate chief judge in the 1990s, he oversaw what became known as the criminal case flow management system. Lawyers, even some judges, grumbled about it, but Stansfield consulted widely in addition to drawing on his own experience in courthouses large and small in creating the system. Lawyers were concerned that the CCFM, as it came to be known, would alter their own case flow and cut into their billing. But Stansfield had anticipated that and was clear that the system actually created more flexibility, and that lawyers could make as much or more as under the old system.

When he first came to Nanaimo as chief judge in May 2006, Stansfield addressed a gathering of business people. He didn’t tell them what the justice system was going to do about drugs and crime, just when Victoria Crescent had seen the arrival of open drug use and dealing and the problems that went with that.

Stansfield turned the tables and invited them to join the justice system in finding a solution. I have to admit I was a little surprised, and happy, to hear that the chief judge had some good ideas about changing the perceptions of a failing justice system.

“We need to be integrating (the justice system) into communities in ways we never have before,” he said at the time. “We’re recognizing we can’t be that way, we have to open up the doors, literally and metaphorically.”

Stansfield was back in Nanaimo a month later speaking to city staff members, council members, police and Crown and defence lawyers in light of the drug plague that had invaded the downtown. Again Stansfield didn’t bring a message of stiffer sentences and harsher laws. He knew how those efforts not only fail, but compound criminality.

The most important piece, said Stansfield, was finding a way to help drug users.

“For some offenders, their lives are going to be served best by getting at their problems,” said Stansfield.

As he did with streamlining a convoluted court system designed for a past era, Stansfield went on to be the figure behind opening a drug court in Vancouver as well as the community court pilot programs. I remember his passion as he described to me the Red Hook Community Justice Centre in New York that he had visited.

If I understand Stansfield’s vision, it was for a justice system that reserved the adversarial process for serious crimes and diverted drug and mental health cases to the proper forums where they would be handled as health issues. Civil cases also needed to be moved into a realm where the courts were part of dispute resolution, not dictating a decision, he said. It’s sad Stansfield has been taken from us, but his passing will give all of us the opportunity to embrace his vision of creating a justice system that is effective as well as compassionate.

© Copyright (c) Canwest News Service

A common misconception is that an RESP is actually a trust, and upon the death of the subscriber, the assets comprising the RESP will be held in trust for the benefit of the beneficiaries identified in the contract between the subscriber and the promoter.

Because of this misconception, many people imagine that they do not need to worry about the disposition of their RESP assets upon their death. Not correct.

In fact, upon the death of the sole subscriber or the surviving joint subscriber, the RESP becomes an asset of his or her estate and is subject to the terms of the deceased subscriber’s will. In addition, an RESP remains an asset of the estate for the purposes of creditor claims and calculation of estate administration taxes.

Typically the contract with the promoter is binding on the subscriber’s personal representatives. However, the fact that the RESP contract is binding on the subscriber’s personal representatives does not necessarily mean the personal representatives assume all of the rights of the subscriber with respect to the RESP. It may be that the contract provides that only the right to manage the RESP will flow to the personal representatives. In such a circumstance, the personal representatives would not be allowed to add or change beneficiaries, to make withdrawals, or to direct EAPs to or for the benefit of assisting a beneficiary to further his or her education at a post-secondary school level, without taking some further steps (such as making a contribution to the RESP) in order to acquire full rights as a succeeding subscriber.

It is therefore important to review the contractual terms of the RESP to determine, among other things, whether it:

(1) permits the subscriber to name a succeeding subscriber;

(2) imposes any requirements on the succeeding subscriber to make a contribution to the RESP in order to assume the full rights of the subscriber with respect to the RESP; or

(3) provides that the subscriber’s personal representatives become the succeeding subscribers.

The contractual terms of the RESP should also be reviewed in order to determine whether there are any further restrictions imposed on succeeding subscribers with respect to any other matters regarding the RESP, including the ultimate distribution of the assets of the RESP.

In short, a review of the contractual terms of the RESP is necessary to determine whether the contract provides for any other person (including the estate of a deceased individual) to acquire the deceased subscriber’s rights under the RESP and thereby become the new subscribers of the RESP for the purposes of the ITA.

This information is based on a chapter written by Laura West in British Columbia Estate Planning and Wealth Preservation.

Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the testator. In order to obtain a grant of probate of a will, the will must be proved to the court.

Probate actions are actions to prove a will in solemn form.

The vast majority of wills are proved in common form under Rule 61 of the Rules of Court. This process does not involve the commencement of any action. The grant of probate is issued on the basis of affidavit evidence filed with the court by the executor. Once the grant is issued, the executor can proceed to administer the estate. A will proved in common form can later be subject to an action to revoke the grant of probate on the basis that the will was not valid.

Proof in solemn form protects a will from later attack, as once a will has been proved in solemn form it is protected under the principle of res judicata (meaning a matter which has already been conclusively decided by a court and is thus conclusive as between the parties). A will proved in solemn form can only be attacked if the will is later found to have been revoked or if it is proven that the grant in solemn form was obtained by fraud..

The necessity for proof in solemn form most of the time arises in circumstances of factual controversy. A will is usuallyproved in solemn form by commencement of an action. There are two ways in which probate actions generally arise:

1. A beneficiary files a caveat or otherwise makes known to the executor that they take issue with the validity of the will and the executor is therefore required to commence a proof in solemn form action;or
2. The executor obtains proof in common form and someone commences an action for revocation of the grant of probate. The executor is them required to counterclaim for proof in solemn form.

Parties to the Action

Rule 62(2) dictates that all persons having an interest in upholding or disputing the validity of a testamentary paper shall be joined as defendants. Pursuant to Rule 62(3), the writ of summons or statement of claim must contain a statement of the interest of the plaintiff and each defendant in the estate of the deceased.

The executor must also be named as a party. A person interested in the estate who is not named as a party may enter an appearance and defend the action as if they were a defendant (Rule 62(4)).

A person “interested in the estate” would likely include the executor(s), beneficiaries under the will, beneficiaries under the prior will if there is a prior will and intestate heirs if there is no prior will.

The Law Relating to Validity of Wills

When an action is brought to prove a will in solemn form, a court must determine the validity of that will. The following are possible grounds for invalidating a will:

1. invalid execution;
2. lack of knowledge and approval;
3. testamentary incapacity; and
4. undue influence and fraud.

Burden of Proof

The onus of establishing the validity of a will is on the propounder of the will, insofar as they must show that the will was validly executed, that the testator had knowledge and approval of the contents of the will, and that the testator had testamentary capacity. The propounder of the will is aided in this regard by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. In those circumstances the burden shifts to the attacker of the will to prove lack of knowledge and approval, lack of capacity or undue influence.’

The Doctrine of Suspicious Circumstances

If suspicious circumstances are established, the burden of proof shifts again and there is no presumption of validity where the will is executed with the requisite formalities and read to or by the testator.

Suspicious circumstances may be:

1. circumstances surrounding the preparation of the will;
2. circumstances tending to call into question the capacity of the testator; or
3. circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

In Vout v. Hay, the Supreme Court of Canada held that any of the above three categories of suspicious circumstances would affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity would also be affected if the suspicious circumstances reflected on the mental capacity of the testator to make a will. Where suspicious circumstances exist, the burden of proof shifts to the propounder of the will with regard to knowledge and approval and testamentary capacity.

Suspicious circumstances will arise whenever a “will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator.” Suspicious circumstances “are not circumstances that create a general miasma of suspicion that something unsavoury may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not haveknown and approved of the contents of the will.”

Evidence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard. With respect to allegations of undue influence, suspicious circumstances do not give rise to a shift in the burden of proof. In other words, even where there are suspicious circumstances, the burden remains on the attacker of the will to prove undue influence or fraud.

Nature of a Committeeship

A committeeship is a way of protecting the interests of a dependent adult who is incapable of managing his or her affairs (the “patient”). The Patients Property Act of British Columbia (”the Act”) legislates how a committee is appointed and how the personal and financial affairs of the patient is managed.

Committeeship appointments require the court to declare that patients are:

a. incapable of managing their affairs;

b. incapable of managing their selves; or

c. incapable of managing both their affairs and their selves.

The Act makes this distinction between individuals’ inability to manage their affairs versus and inability to manage their selves, since many individuals who are incapable of handling their financial and legal affairs, particularly where their estate is complex or large, may still be capable of exercising choices on matters such as personal care, where and with whom they wish to live, and what kind of medical treatment they wish to receive. Therefore it is possible to have someone appointed solely as the committee of a patient’s estate or of a patient’s person, rather than of both. It is also possible to have someone appointed committee of a patient’s person, while someone else - most often a trust company - appointed as committee of that patient’s estate.

Material in support

Because the appointment of a committee encroaches on a person’s freedom, the court requires that the declaration be clearly warranted by the circumstances. The materials provided to the court for examination must include the following:

1) The affidavits of two doctors sworn within a reasonable time of the application (one to two months), that indicate the patient is, for stated reasons, incapable of managing him or her self or his or her affairs by reason of mental infirmity arising from disease, age, or otherwise, or by reason of disorder or disability of mind arising from the use of drugs;

2) Notice of the application has been served on the patient or, where applicable, that service on the patient would be injurious to the patient’s health or otherwise inadvisable for stated reasons;

3) The names and addresses of the patient’s next of kin;

4) The Public Guardian and Trustee of British Columbia (the “PGT”) has been notified of the application and the PGT’s recommendations are before the court in the form of a letter of response; and

5) A specific listing of the patient’s assets, liabilities, income and expenses that includes, wherever possible, current balances, account numbers and the names and addresses of the various banking institutions.

Notice of the Application

Notice of the application for the order must be served at least ten days before the date of the application on the following people:

a) the patient,

b) the PGT,

c) any person whose rights may be affected by the order.

The Patient

The court will dispense with service of notice on the patient only when satisfied that service would injure that person’s health, or would for any other reason be inadvisable in the interests of the patient. A request to dispense with service on the patient must be supported by the medical evidence, stating not only the physician’s opinion that service would be injurious to the patient, but also how service would be injurious, with related clinical findings.

The PGT

Notice to the PGT obligates that office to critically review the application. The PGT’s role is to review the application with the protection of the patient’s rights in mind. The PGT provides comments to the applicant and to the court before the hearing. If the PGT’s recommendations are not acceptable to the applicant, the applicant must respond to give the PGT sufficient time to arrange for representation at the hearing. The areas in which the PGT generally makes specific recommendations on are:

a) Whether the patient should be notified,

b) What restrictions, if any, should be placed on the sale of any real estate owned by the patient,

c) Whether a bond, or other form of security to the patient for their estate, should be posted.

Other Parties

Other persons whose rights may be affected by a committeeship order are generally the next of kin or holders of a power of attorney.

Security by Posting of a Bond

In practice, the PGT recommends that a bond be posted for the security of the patient’s estate.

Generally the PGT is willing to waive this requirement if the applicant is a near next-of-kin and a primary beneficiary of the patient’s Will.

Effect of the Order

Once the order is granted, and if the applicant has been appointed committee of both the estate and the person of the patient, then the committee has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if he or she was of full age and sound and disposing mind, and as well the custody of the person of the patient and the patient’s medical welfare. This power must be exercised for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and circumstances of the patient and the patient’s family. This power is restricted only by such conditions as the court imposes on the committee. The committee’s power also does not extend to contracting marriage for the patient, drawing up a Will, or changing the designation of beneficiaries under insurance policies, pension plans, or registered retirement savings plans.

Duties of the Committee

The committee must present his or her accounts to the PGT for approval at intervals set by the PGT’s office. These intervals will be referred to in letters received from the PGT.

The first reporting period will usually be for one year after the court order is made.

Upon the appointment of a committee, it is the practice of the PGT to provide the committee with a handbook which sets out the committee’s obligations and responsibilities, as well as guidance on how to administer the money entrusted to the committee. The PGT also provides a draft form of reporting, known as a Summary of Accounts, to assist the committee in satisfying those obligations.

Costs and Remuneration

A committee is entitled to recover from the estate of the patient all reasonable legal fees and disbursements relating to the committeeship application. These disbursements extend to the fees charged by the PGT and by the physicians in producing the affidavits in support of the application. All costs incurred by the committee on behalf of the patient will be reviewed by the PGT when the committee provides the required accounting.

The committee is also entitled to be compensated from the estate of the patient for services provided to the patient at a reasonable rate, which is fixed on the passing of the accounts. A committee is not entitled to employ a professional person, at the expense of the estate of the patient, to do work not usually requiring professional assistance.

For further information, see the PGT’s website at http://www.trustee.bc.ca

Law Day 2009 will provide the public with the opportunity to learn about the law, the legal profession and the legal institutions that form the cornerstones of our Canadian democracy.

On Saturday, April 25th from 10AM to 3PM all residents of the Greater Vancouver area are invited to come down to the Central Vancouver Public Library, located at 350 West Georgia Street (between Homer, Hamilton and Robson Streets). At Law Day, the public can learn what the justice system is doing to keep us safe on the streets and in our homes while upholding the rights of all Canadians under the Charter of Rights and Freedoms.

The Law Day activities will include a public forum featuring CBC broadcaster Ian Hanomansing as the moderator and a panel consisting of:
•    The Honourable Chief Justice Brenner, Supreme Court of British Columbia
•    The Honourable Chief Judge Stansfield, Provincial Court of British Columbia
•    Superintendent Warren Lemcke, Vancouver Police Department
•    Assistant Commissioner Peter German, RCMP
•    Peter McKnight, Columnist, The Vancouver Sun

The panel will not only provide open and frank presentations, but they will also answer the questions put to them by the members of the public in attendance.

The Law Day Open House will also include informative displays from a variety of legal organizations, free law classes courtesy of the People’s Law School, and a Citizenship Ceremony presided over by Chief Justice Finch.

On Law Day, the Canadian Bar Association British Columbia Branch will also hold its province-wide “Dial-A-Lawyer” as part of Law Week. Lower Mainland residents are invited to call 604.687.3221 between 10:00 am and 2:00 pm to speak with a lawyer for up to 15 minutes at no cost.

For more information about BC Law Week, visit: www.bclawweek.org