Frequently Asked Questions

Good estate planning will save the will-maker’s estate money and make the process smoother for executors appointed in wills. A will is just one part of a person’s entire financial picture and estate plan. Some estate assets will often pass ‘outside’ a will through joint tenancies and designations of beneficiaries on life insurance, RRSPs/RRIFs, pensions, and other assets. Trusts and other proper planning can also be used as an effective means to deter wills variation claims from estranged independent adult children. A good estate plan will consider all these factors.

In the short-term, the executor will need to arrange a funeral or other similar services for the deceased will-maker in accordance with the will-maker’s wishes as set out in their will or otherwise. After this, the executor should consult a lawyer to assist with any questions about the particular estate at issue and whether probate is necessary

Probate is a court application where a court confirms, through a ‘grant of probate’, that a will is the last will of the will-maker so that third parties, such as banks and the Land Title Office, are assured that the executor has the authority they claim to have with respect to the will-maker’s estate. Probate (and consequentially probate fees) can sometimes be avoided with effective estate planning. On any probate application, the estate has to bear ‘probate fees’ which in substance are a tax to the government on probate applications payable by the estate (probate fees are calculated based on $0 for the first $25,000 of the estate, $6 for every $1,000 between $25,000 and $50,000 of estate, and $14 for every $1,000 above $50,000).

You should consult a lawyer. You may have wills variation rights if you are the biological/adopted child of the deceased will-maker. There are short limitation periods with wills variation claims, so you should act quickly.

Possibly. There is a section of the wills legislation that permits courts to accept such documents into probate if the document contains the fixed and final testamentary intentions of your mother and if there is no other factor (i.e. incapacity or undue influence) that might negate the effect of such intentions. You should consult a lawyer immediately.

This situation is called an intestacy. The wills legislation provides which next-of-kin are entitled to benefit from the deceased person’s estate on an intestacy, and who is entitled to apply to be administrator of the deceased person’s estate. An application to be administrator is similar to the probate application described above, but with some differences. You should consult a lawyer to discuss further.

The answer to this question is often a combination of legal advice from a lawyer and tax advice from an accountant. Usually, the two biggest considerations as to whether to incorporate a company are the limited liability benefits of a company and the tax benefits (or not) of incorporating. Incorporating a company will lead to obligations to file annual reports and tax returns for the company that will be a significant yearly cost ($2,500-$3,500) for the company. Sometimes it will make more sense to delay incorporating and remain a sole proprietorship for a period of time to offset a fledgling business’s losses against other employment income that the proprietor might earn, or alternately—if there is no ability to retain money within the company— if and when the business starts turning a decent profit, that might be the time to better consider incorporating. Sometimes the nature of a business (i.e. construction) is so inherently risky that the limited liability benefits of doing business through a corporation makes the most sense. Other times a partnership (whether a general partnership, limited partnership, or limited liability partnership) will make the most sense. Each situation is unique and will require specific advice for the situation.

Lawyers are skilled at drafting the documentation involved on such matters in a way that accomplishes the client’s objectives. Lawyers (often in consultation with the client’s accountant) will also consider any tax implications (i.e. income tax, GST, PST, Property Transfer Tax, etc.) of any restructuring to minimize risk and cost for the client. It’s recommended to use a lawyer if the complexities warrant it.

If you’re considering a significant investment in a business, you will want to talk to both a lawyer and an accountant before signing anything. Lawyers will draft an agreement in a way that protects a purchaser as much as possible, usually in the form of representations, warranties, covenants, and indemnity agreements on the part of the seller. The purchaser may or may not need to incorporate a holding company in which to purchase the business or negotiate a commercial lease assignment with a landlord, all of which a lawyer can help with. How the purchase price is allocated among the various business assets purchased has importance from a tax perspective for both purchaser and seller. All of these issues and more need to be considered before anything is signed.

A letter of intent is a document, signed by a purchaser and a seller, that lays out the basic framework of a business transaction (i.e. price, subject-matter, closing date, etc.). Letters of intent are generally non-binding on the parties other than a few provisions (i.e. confidentiality, obligation to continue to proceed in good faith, etc.). Letters of intent are often used in more complicated or significant commercial transactions when there might be a lengthy period of time of further negotiation of an asset or share purchase agreement after the letter of intent is signed. Letters of intent often are drafted to state that, if an asset or share purchase agreement is not signed by a certain date, then the parties will have no further obligations to each other, other than those provisions of the letter of intent (i.e. confidentiality) that may continue to bind the parties.

Generally, most land title documents need to be witnessed by either a lawyer or a notary public. All lawyers at Fraserwest Law Group LLP are also notary publics. The advantage of using a lawyer at Fraserwest Law Group versus a notary public who is not a lawyer is twofold: (1) the conveyancing fees of lawyers at Fraserwest Law Group LLP are competitive with fees charged by notary publics who are not lawyers; and (2) if there is any legal issue that emerges on the transaction (i.e. the other party is wanting to back out of the deal, etc.), the lawyer is instantly able to give legal advice and take action on behalf of the client, unlike a notary public who is not a lawyer.

Depending on the situation, you may be put to an election as to whether you wish to keep the contract ‘alive’ and compel the other side to complete the transaction, or whether to elect to give notice of ‘acceptance’ of the other side’s repudiation of the contract, terminate the contract, and seek damages and/or forfeiture of a deposit. Before doing anything, get advice and guidance from a lawyer because you don’t want to do anything that might itself be construed as a breach of the contract, possibly entitling the non-completing party to terminate the contract and seek damages from you and/or return of a deposit. These situations are precarious and you need to act quickly and in a way that preserves your rights.

Talk to a lawyer. It may be the case that you can’t subdivide the property if the land is in the agricultural land reserve; however, there are some limited exceptions in which subdivisions of agricultural land reserve land are permitted.

You should contact ICBC immediately to report the accident. ICBC has recently gone to a ‘no-fault’ system, which means that, except in very few limited circumstances, you are barred from suing someone who has negligently injured you in a car accident for damages, and you are limited to the income loss and treatment that ICBC pays you under their capped ‘no-fault’ system. Talk to a lawyer if you have any questions or concerns about anything

Most claims have a two-year limitation period. There are some claims (i.e. claims against municipalities, wills variation claims, etc.) in which there are much shorter limitation periods. There are special rules that govern when a limitation period starts and also the possible renewal of a limitation period. Do not sit on your rights and make sure you move quickly and within time.

You should immediately contact your insurance provider(s) to check see if the type of claim(s) you’re being sued for is covered by any third-party liability insurance you have. If it’s an insured claim, then the insurance company will handle all steps and costs related to the defence of the claim (including legal costs) and pay any damages up to the policy limits—you would be responsible for anything over and above policy limits. If it’s not an insured claim, however, you should proceed as follows: (1) if the claim against you is a small claim or Civil Resolution Tribunal matter, you should attempt to reply within the timelines required yourself—generally these systems are designed for people to take steps on their own without the assistance of lawyers, and it’s usually not cost-effective to have a lawyer involved to assist you on such matters. If you need legal assistance, a lawyer can help; however, keep in mind you will not be able to recover the legal fees you pay from the other side; and (2) if the matter is a Supreme Court of B.C. matter, you should probably contact a lawyer for initial advice about the proceeding and consider retaining a lawyer to assist in the defence of the case. You will want to file a response within the court rule timelines to avoid any sort of ‘default judgment’ being applied for against you.

For claims in which we act for defendants, the billings are based on an hourly rate. The hourly rate would be commensurate with the lawyer’s experience and skill. For claims in which we act for plaintiffs (other than family law plaintiffs), the fees would be based on either an hourly rate or a contingency fee basis, which would have to be discussed and agreed to by both the lawyer and client. A contingency fee agreement is an agreement where the client retains the lawyer on the basis that the lawyer’s fee is based on a percentage of the amount recovered by the client in their claim, and the lawyer’s fee is conditional on recovering a collected settlement or judgment on the client’s behalf. The law firm then typically ‘carries’ disbursements until the conclusion of the case, at which time the law firm is reimbursed for the disbursements in addition to their fees. Lawyers cannot be forced to be retained on a contingency fee basis, and usually lawyers will not agree to a contingency fee agreement if the chances are high that the plaintiff won’t be successful in their claim. All family law claims are billed on an hourly rate basis.

Just bring yourself and any other documents the lawyer’s assistant has asked you to bring to the meeting.

Most legal disputes that result in a B.C. Supreme Court civil action come to a resolution at some point before there is a trial. A trial is the culmination in the dispute, where a judge or jury would decide the matter. From the date a legal proceeding is started to the date of trial, there are numerous pre-trial procedures (i.e. document discovery, examinations for discovery, etc.) that assist the parties in determining the strength or not of their claims or defences. In certain situations, there are also ‘streamlined’ procedures (i.e. summary trials and ‘fast track’ proceedings) that can expedite a resolution and save on the costs of a full-fledged trial. The parties can also often choose to pay for a mediation before trial to see if that would assist the parties in coming to a resolution. It’s important to remember that most ‘costs’ awarded against the unsuccessful party in a civil trial only amount to a small fraction of that party’s actual legal costs, so even parties who have the ‘upper hand’ in a legal proceeding would often be wise to consider settling rather than proceeding to a trial if they can’t recover a substantial part of the legal fees anticipated to be incurred. There are mechanisms such as formal offers to settle that can be used to put pressure on a party that is not acting reasonably in either proceeding with or defending a claim, by way of increased costs consequences to such party if they don’t accept a reasonable formal offer to settle.