Subject to the terms of the Statute of Frauds which is outline below, both written and verbal agreements are valid and enforceable.
The difficulty with a verbal agreement is that the terms of it may be very difficult to determine, as opposed to a written agreement.It is therefore always preferable to put an agreement in writing.
An agreement may be partially in writing, and partially verbal.There is great difficulty in this type of agreement however, in that the “Parol Evidence Rule” states that evidence of a verbal term that contradicts a written term of an agreement should be rejected.
Most written commercial agreements contain a term stating that the written agreement contains the whole of the agreement between the parties, and there have been no verbal representations.Obviously arguing for a verbal term in the face of such a provision is a difficult proposition.
If one boughta photocopier and there was a written term of the agreement that the Vendor would supply one box of photocopier paper, but the salesman promises two boxes, this promise would probably not be enforceable as the verbal two box promise contradicted the one box written provision.In addition the written contract probably has a term that it contains the entire agreement, thereby further frustrating the buyer’s argument that he or she was verbally promised two boxes.
The lesson to be learned is that while a verbal agreement may be enforceable, the far better practice is to prepare a written record of the agreement.Make sure that all terms of the agreement are accurately written into the document.Never rely on a verbal promise that is not incorporated into the written agreement.If the written agreement contains a term that it is the entire agreement with no verbal representations (which is a good practice to include), make doubly sure everything is included.
In the event that you have entered into a verbal agreement, you should prepare a letter/memo setting out in detail all the terms that were agreed to, and place it on your file.It is also a good practice to forward a copy of the letter/memo to the other contracting party “confirming” what was agreed.If the other contracting party does not contact you contradicting your letter/memo, it is likely that a Court will place great reliance on it as accurately embodying the deal.
Sometimes your written contract will be formed by a series of letters, faxes and or emails.In other words the contract is not incorporated into a nice 2 or 3 document. Make certain that the pieces of paper that form your “less formal” agreement are all put together and kept in a secure location.
The Statute of Frauds enacted in 1677 is still in force in Alberta and it sets out which contract MUST be in writing.Traditionally, the Statute of Frauds requires a signed writing in the following circumstances:
Contracts in consideration of marriage. This provision covers prenuptial agreements.
Contracts that cannot be performed within one year. However, contracts of indefinite duration do not fall under the statute of frauds regardless of how long the performance actually takes.
Contracts for the transfer of an interest in land. This applies not only to a contract to sell land but also to any other contract in which land or an interest in it is disposed, such as the grant of a mortgage or an easement.
Contracts by the executor of a will to pay a debt of the estate with his own money.
Contracts for the sale of goods involving a purchase price of $50 or more in Alberta.
Contracts in which one party becomes a surety (acts as guarantor) for another party’s debt or other obligation.
For more information contact Courtney Aarbo Barristers and Solicitors at www.aflawyers.caor info@aflawyers.ca or phone 403 571-5120. .
What if I Die Without a Will?
By Aarbo Fuldauer LLP, Lawyers
A will is the basic legally binding document that we all should have prepared. Of course there are many occasions when people die without a will. I am often asked ‘what happens then?’
In Alberta, a person dying without a will dies ‘intestate’. When this happens Part 3 of the Wills and Succession Act of Alberta governs what happens to your estate. I will attempt a brief summary of the distribution scheme imposed by the legislation;
Section 60 If you die learning a spouse or adult interdependent partner (‘common law spouse’) and no children, your entire estate goes to the spouse or adult interdependent partner;
Section61If you die leaving a spouse or adult interdependent partner and a child or children where your surviving spouse is also the parent, your spouse or adult interdependent partner gets your entire estate. If the spouse is not the parent of the child or children then the spouse or adult interdependent partner gets 50% and the child/children share the other 50%
Section 63If you still have a spouse but you were separated at least 2 years or had a court order or agreement that is a final property split, then the spouse is deemed to have predeceased you and gets nothing.
Section 66If you have no spouse or adult interdependent partner, but have children (or grandchildren) at the time of death, the estate will be split equally amongst your children or grandchildren, with a share also being split amongst grandchildren from a pre-deceasing child.
Section67If you have no spouse, adult interdependent partner, children, or grandchildren, your estate goes first to your parents or parent of surviving, but if not it goes to your siblings.
Basically the act continues in its distribution scheme down the line of relatives to a limited extent. In the event there are no relatives close enough to qualify then eventually the government of Alberta would become the beneficiary of last resort.
Of course many issues are not and really cannot be covered off by the above default legislation. Some of the more obvious problems when there is no will include:
1)No appointment of an Executor as occurs in the will to look after the funeral and process the estate debts, assets and bequests. Instead an ‘Administrator’ must be appointed by the Courts;
2)You will have no say over funeral arrangements, although usually a funeral home will ask your next of kin for direction;
3)There will be no bequests of money or special keep sakes to chosen people or charities;
4)There will be no ability to set up life estates for people in things like your home;
5)Children and grandchildren will take at 18 years of age rather then at an older more mature age.
6)You will not be able to set up a trust fund for young beneficiaries, for example your children, where money is held until a certain age by a trusted person and used for education and necessaries of life, until the child is old enough to manage the money wisely (say 25);
7)While a young beneficiary is under 18 the government of Albertawill manage his or her money;
8)If you have no surviving spouse, children or grandchildren, while the estate will likely go to your more extended family, nothing will go to your predeceasing spouses ‘blood’ relatives;
9)You will not have a chance to name a guardian to look after your children who are under 18;
10)The legal costs of the estate will likely be higher than if you had a will.
Hopefully after reviewing the above information you will agree that having a will prepared should be a priority. The fee for a couple doing a standard will is not prohibitive usually about $700.00 for the two, not each. The cost of a single will is normally $500.00.
For more information contact Aarbo Fuldauer LLP, Lawyers at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@aflawyers.ca or phone 403-571-5120.
– The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.
What is “Probating a Will’ and
Are All Wills Probated in Alberta?
By Aarbo Fuldauer LLP, Lawyers
Probating a will is a procedure that occurs after a persons death where the Executor named in the will submits the will to the Court for review and approval.
Once a ‘Probate Application’ is submitted a Judge will review the will to determine its validity, and other information provided to the Court regarding the deceased, the family, the beneficiaries, and the assets/debts of the Estate. Beneficiaries will also be notified about the application.
Normally a Judge will then grant a ‘Probate Order’ approving the will and the Executor’s appointment. In Calgary at present the Court usually takes about 2 months to grant an order, once the correct and complete paperwork is filed at Court.
Most, but not all Wills need to be probated. If the deceased owned any interests in land that were not in ‘joint tenancy’ with someone else, so that on death the land interest goes into the estate, a probate must occur. Land Titles will not transfer a land interest in an estate until there is a certified copy of Probate Order registered.
If there are any bank accounts or investments of the deceased that were not being held in a ‘joint account’, or for which a named beneficiary or the investment would on death automatically receive the investment (an RRSP named beneficiary), then the will must be probated before the bank or investment company will allow the Executor to access the funds.
The rule of thumb really is that all wills need to be submitted to the Court for a Probate Application, unless really nothing of significant value goes into the estate on death because the deceased was a pauper, or the deceased’s assets were all transferred to people outside of the will through joint ownership or naming of beneficiaries on investment documents.
We do recommend that when a will needs to be ‘probated’, the Executor retain a lawyer. At Courtney Aarbo we will assist in providing necessary advise to the Executor on how to administer the Estate, we will prepare, serve, and file the Probate Application, transfer land interests once the Probate Order arrives, assist with finalizing the Estate, and be available for questions from Executors and Beneficiaries as the Estate is administered. The approximate fee cost for this work on a normal estate is between $2,500.00 and $4,000.00.
For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@aflawyers.ca or phone 403-571-5120.
– The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.
Land Interests of a Deceased in Alberta
When can they be Transferred and/or Sold?
By Aarbo Fuldauer LLP, Barristers & Solicitors
In many cases the majority of a deceased’s estate value is made up ofland interests (house, condo,farm land). Their efficient transfer to ‘survivors’ and ‘beneficiaries’ is very important.
A first step for an Executor of a deceased is to determine what land interests in fact come into the Estate on a death.
If a deceased owned a land interest ‘jointly with right of survivorship’, then the land interest is not technically part of the estate, and does not become an asset under the will for the Executor to administer. Instead the land interest of the deceased transfers automatically on death, to be owned 100% by the ‘survivor’ on title. This method of ownership is typical of spouses and common law partners, meaning the surviving spouse/ partner will automatically become sole owner. What the survivor on title needs to do is file at the Land Titles Office the necessary ‘ Survivorship Declaration’, together with proof of the death.
All other forms of land titles ownership by a deceased will in fact fall into the deceased’s estate and be dealt with under the term’s of the will, or if no will, pursuant to the Wills and Succession Act of Alberta (for an intestacy).
A land ownership coming into the estate cannot have its title altered, be it to the name of a beneficiary, or to a new purchaser if being sold, until a Probate Order or Order for Administration is granted by a Justice of the Alberta Court of Queen’s Bench. The Land Titles Office by law cannot alter the title until there is a Court Order in place.
The obtaining of a Court Order will occur only after the Executor under the will, or the person applying to administer an estate, brings the necessary ‘Probate Application’, or ‘Application for Appointment of Administrator’ to the Courts. The procedure involves the filing of about a 10 to 15 page application touching on various aspects of the deceased, the beneficiaries, the will, and the estate value. At present the Court is taking about 2 months to approve an application once it is filed in the correct form.
Until the ‘Probate Order’ or ‘Order of Administration’ is granted by the Court, the Executor and Administrator have no ability to legally sign contracts listing or selling land, let alone signing a transfer to a beneficiary or purchaser. Once the Court Order is obtained it is filed at Land Titles and the land interest will be placed into the name of the Executor/Administrator. Only then can the Executor/Administrator sell or transfer the title.
It is not only essential for the Executor or Administrator of an Estate to understand the above procedure and timing for dealing with land interest in estates for sale or transfer purposes, it is also essential for all necessary steps to be taken to secure, insure, and safeguard the property while the process unfolds.
At Courtney Aarbo Barristers & Solicitors we are happy to assist you with any estate issues or concerns that might occur, including applying for Probate and Administration Orders, and transferring land interests.
For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@aflawyers.ca or phone 403-571-5120.
– The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.
When writing a will, one of the most important steps is deciding who will administer your estate. The person you name is called an Executor and they are empowered to do a lot of things on your behalf. To better understand their duties before you choose, or if you are an Executor and don’t know where to start, here are the basics.
The Executor as Trustee
The most important role of the Executor is that of the Trustee of the estate. This is not just a title, it has important legal obligations attached to it. As trustee, an Executor must exercise the powers they are given with diligence and are personally liable if negligent.
Trustees have a fiduciary duty to the estate, meaning that they must administer the estate for the benefit of the beneficiaries. It is a relationship of trust and confidence and is granted the highest standard of care in law because of this.
There is one major difference between a traditional trustee and an Executor. A trustee can appoint other trustees and can leave the trust. An Executor cannot appoint co-Executors and is an Executor for life.
Other Duties
Aside from the overarching fiduciary duty, an Executor has specific duties they must accomplish. These include:
disposal of the deceased’s body
schedule all the deceased’s assets and ascertain their value
arrange to have application made to the Probate Court for the issue of proper grant of administration
complete and file any applicable succession duty forms
advertise for creditors
complete and file income tax returns
pay funeral, legal, and testamentary expenses, succession duties, and income taxes, as well as any outstanding debts and meet all uncompleted obligations of the deceased
claim all debts due
keep accounts
This is not a complete list, but these are the common things an Executor must do in the course of administering an estate.
If you require a will or have been named as an Executor and have questions as to your duties, speak to one of the lawyers at Aarbo Fuldauer LLP in Calgary.
The information in the blog is not legal advice. Do not treat or rely upon it as legal advice. If you require legal assistance, please contact a lawyer
You have decided to get a will and take the first step towards planning how your affairs will be dealt with after you die. But what exactly goes into a will other than who looks after the kids and who gets the house? While thinking about who gets your possessions is important, estate planning includes several other things that you need to think about when you start preparing a will.
Estate Planning Basics
There are several standard questions you will need to answer when drafting a will:
Who would you like to oversee the distribution of your estate (also known as the Executor)?
Are their any minor (under 18) children and who will look after them?
Who will you designate as a beneficiary for assets like RRSPs?
Do you have any specific gifts you want to make, to people or charities?
Do you have any specific funeral arrangements?
What happens if the people you give your estate to die before you?
How will your debts be paid after death?
Each of these questions is the start of drafting a comprehensive will that allows for your wishes to be carried out. Key among these questions is appointing an Executor, the person who will carry out your instructions on your behalf. Executors take possession of your estate, pay off debts, and distribute your gifts. Click here for more information on the duties of an Executor.
Special Request and Conditions in Wills
When estate planning, many people want to make a special gif to someone, but with a provision that they do or not do something. Placing conditions of gifts in wills can be difficult and certain things cannot be done. Three things can invalidate a condition in a will:
Where a condition goes against public policy (e.g. encouraging criminal activity)
Speaking to a lawyer during estate planning about what conditions you can and cannot include in your will helps to ensure that the final document will be valid.
The information in the blog is not legal advice. Do not treat or rely upon it as legal advice. If you require legal assistance, please contact a lawyer