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Do I really need a will?
Everyone needs a will, even single people with no children.   The rare exception may be single persons with no children and no assets, but most people will likely acquire some assets or have children in his or her lifetime.  Thus, even if one does not have any assets or children now then one should still have a will if they are planning on acquiring assets or having children in the future.

 

If you do not have a will then your estate will go “intestate”.  This means that someone will need to come forward and bring an application at the courts to have your assets administered in accordance with inflexible rules as to how assets should be divided.  Also, the government will decide who will raise your children.  It is a very costly process and takes much longer to administer. 

 

It is possible to draft your own will or use a kit acquired from a stationary store, but in my experience these very often create problems.  There are rules that must be followed.  There are rules that govern the validity of a will and there are rules about where your money should go.  For example, have you ever heard of the “Rule Against Perpetuities”?  It states that a gift in a will must vest within a life in being and 21 years.  If the rule is not followed the gift or the will could fail. 

 

The point is that people are not completely free to do whatever they want with their money on death.  There is a priority list of who must be paid and relatives who must be cared for upon death.  If any one of these rules are not followed then a will could be found to be invalid or go “partially intestate” (partially invalid).  Also, there are tax implications to just about everything that is done in a will (or not done!).  

 

Most lawyers do no charge a lot of money to prepare a will.  The cost to correct errors and omissions on self-drafted wills can cost many thousands of dollars and pit family member against family member.  Poor drafting can lead to an estate paying more tax than necessary.    Thus, for a small price to have a will drafted, you can possibly save many thousands in litigation costs, tax bills and family strife.

 

Finally, doing up a professional will allow the following goals to be accomplished in a manner that can be relied upon:

 

–          Pick the person(s) who will administer your estate and specify what compensation, if any, he or she should receive.

 

–          Pick a guardian for your children.

 

–          Make gifts to different people, or in different proportions than provided for by the Wills and Succession Act which says that everything goes to your spouse (or adult interdependent partner) if you don’t have children, and a combination of your spouse (or adult interdependent partner) if you do. This can be essential for blended families (second marriages).

 

–          Prevent people from having a share in your estate that might otherwise be entitled to a share.

 

–          Delay past age 18 when someone will receive a part of your estate.

 

–          Create a trust for someone, including a discretionary trust for disabled family members.

 

–          Give someone a life estate in something.

 

–          Chose alternate beneficiaries of gifts, trusts, or the residue of your estate.

 

–          Create mirror wills where you and your spouse decide how to plan your estates together.

 

–          Give to charities.

Common Contract Format
By: Gary Courtney, Barrister and Solicitor, 
Providing Information to Assist in Business

 

Most commercial agreements prepared by lawyers, or prepared from a lawyer’s precedent, have six parts, each with their own purpose:

 

a)         Date

 

Generally the date of the agreement will be the first thing found in any agreement.  It should be the date the agreement is signed.  It is usually the date the agreement is effective.

 

From time to time one may find the following term:

 

“This Agreement dated the 5th day of May, 2012 to be effective from the 1stday of January, 2012.”

 

In other words the term is backdating the agreement.  The above term is much preferred to simply dating the Agreement for January 1st, 2012, when in fact it is not signed until May 5th.

 

There is nothing wrong with the above wording having the effect of backdating an agreement, as long as the agreement was in fact in place on January 1, 2012, but simply took about four months to properly document.

 

 A problem arises if there was no agreement on January 1, 2012, as in reality the agreement was not struck until May.  In other words we do not have a proper effective date of an agreement that took a few months to document, but we have a fictitious backdating of an agreement reached in May.  In this case the contracting parties may be committing a fraud if for example the reason for backdating is to obtain some tax advantage.

 

 b)         Parties

 

The second part of the contract should accurately set out the parties to the agreement. Make sure the name of a corporate party is accurately set out.

 

c)         Preamble

 

Most contracts, especially if the document is a lengthy one, will set out a preamble.

 

The preamble is meant to set out the background for the parties entering into an agreement.  Its purpose is to assist in explaining what will be coming next, i.e., what has been agreed.  It also often contains a standard clause acknowledging the flow of consideration necessary to form a binding agreement.

 

In addition to the Preamble’s position in the contract document, following the listing of the “Parties”, one can often recognize the preamble by the use of the word “Whereas”.

 

A typical example is as follows:

 

“Whereas:

1.         Sally Smith is the owner of 50 shares of A.B.C. Investments Ltd. which she wishes to sell;

 

2.         John Jones wishes to purchase 50 shares of A.B.C. Investments Ltd.

 

Now Therefore in return for the sum of $1.00 paid by John Jones to Sally Smith and other good and valuable consideration contained herein the payment and receipt of which is acknowledged:

 

IT IS AGREED”

 

d)         What is Agreed

 

The next part of the typical agreement will generally be the setting out of the main points of the agreement.  If the contracting parties were asked what has been agreed, most or all would be incorporated into this part of the agreement.

 

Usually this part of the contract will state what is to be done, when it is to be done, and how it is to be done.

 

This part might state the following:

 

1.         Sally Smith agrees to sell and transfer to John Jones all her interest and title to 50 shares of A.B.C. Investments Ltd. for a price of $1,000.00, or $20.00 per share.

 

2.         John Jones will pay to Sally Smith the sum of $1,000.00 or $20.00 per share for the 50 shares of A.B.C. Investments Ltd., which sum will be paid on or before May 31, 2000, by certified cheque payable in trust for Sally Smith to Courtney Aarbo, Barristers and Solicitors, 1131 Kensington Road N.W. (3rd Floor), Calgary, Alberta, T2P 3P4.

 

3.         On receipt of payment for the shares Sally Smith will forthwith effect the share     transfer by causing a transfer of the share certificate to John Jones to be effected  and registered on the share register of A.B.C. Investments Ltd.

 

e)         Standard Clauses

 

The next parts of a standard agreement are the standard clauses, sometimes referred to as “the fine print”.  The section is typically thought of as the part of the agreement that the parties’ lawyers would likely put into an agreement.  It may be much longer than the rest of the agreement.  The terms are difficult to understand.  Unfortunately the parties often do not read these sections of the agreement prior to signing it.

 

In the share transfer agreement that we have been using as an example this area of the agreement would likely contain terms covering the following areas:

 

·         Extensive provisions regarding representations  and warranties that Sally Smith would give to John Jones concerning her having good and clear title to the shares, her having the right to transfer the shares, and even the financial position of the company itself.

 

·         Detailed particulars of further acts which must be done to effect the share transfer.

 

·         Conditions precedent to the share transfer.

 

·         Termination of the agreement.

 

·         Amendment of the agreement.

 

·         Interest for late payment.

 

·         Where notices can be sent.

 

·         Arbitration of dispute clause.

 

·         “Standard” closing clauses such as the clause that the written agreement contains the whole agreement.

 

A further example that most persons can relate to is a mortgage.  Most individuals will review their mortgage, to the extent of the first few clauses setting out the amount borrowed, the interest rate, and the payment terms.  A particularly studious person may review their early payment provision.  With respect to the other 80% of the mortgage, few take the time to review it.

 

If people did review their whole mortgage, they would find shocking terms, such as that they were supposed to get permission of the mortgage company for renovations, and provide copies of their insurance policies.

 

Persons in business should be aware that the “Fine Print” generally contains crucial terms which should be reviewed and understood before signing.  In the event the agreement is signed, and one of the “Fine Print” terms comes back to haunt the signatory, there is no defense to a claim based on not having read the contract.

 

In the real world of business it is difficult to find the time, or have the patience to review all the “Fine Print”.  If the contract is of great importance then likely it will be reviewed by the business’ lawyer, in which case one can often rely on the lawyer to bring any problem to your attention.  Due to cost concerns, it is not always possible to hire a lawyer, but if that decision is made, it will be even more critical for the business person to take the time to review the agreement thoroughly.
f)         

 

The last part of any agreement is the portion where the parties sign.

 

For more information contact Courtney Aarbo Barristers and Solicitors at www.aflawyers.caor info@aflawyers.ca  or phone 403 571-5120.

 

 

 

BUSINESS ACCOUNT COLLECTION
In small businesses, being paid for ones work, being only partially paid, or having to expand energy and money to collect an account is a huge detriment to ones bottom line. In an effort to minimize your difficulties Courtney Aarbo Barristers and Solicitors (www.aflawyers.ca) is pleased to provide you with;
10 Tips for account Collection
  1. If your business is not being ‘paid up front’, then you are in the business of extending credit and you should try to think a bit like your bank.
  1. If your business is extending significant credit, have the customer fill out a credit application, which will hopefully contain information about the customer’s address, place of employment, and bank. All this information way be invaluable in later trying to chase the customer for payment.
  1. If possible obtain a credit card number with an authorization to use it to pay for the services once completed.
  1. If worried about a customer’s credit worthiness do some basic checks on him or her. For example our office or a registry shop can order a ‘Personal Property Registry Search’ at a cost of only a few dollars. This search will show what creditors are registered against the customer and against his or her assets. It will also show registered writs of enforcement by other creditors who have obtained Court Judgments. Obviously doing business with a poor credit risk is to be avoided.
  1. If possible prepare a contract with the customer and make sure it is properly signed. The contract should specify the ‘terms of payment’ and what interest is to be paid on overdue accounts. Note: Simply putting an interest rate on the bottom of an invoice (for example 2% per month) is not legally enforceable. An interest rate must be agreed to in writing in a contract in advance of the contract’s performance.
  1. Make sure any contract contains a term that the customer will repay to the business any and all costs of collecting an account, including lawyer’s fees and disbursements on a solicitor/ client basis. Hopefully if you need to hire a lawyer to collect an account, the cost can be added to the claim.
  1. Be sure to clearly and carefully document on invoices the services which have been done or provided and the charges and credits on the account. Too often unclear accounting results in a customer not paying on a timely basis, or at all.
  1. Be sure that any changes to the work being done or product provided is carefully documented, preferably with the customer acknowledging the change in writing. Surprise changes in a final accounting often result in payment problems. If an account has to be sued on to collect an improperly documented change, a judgment may not be awarded by a judge.
  1. Keep a complete file reflecting what has been done for the customer. For example memos of important conversations or copies of emails confirming important events provide a good record. This documentation will be very useful in settlement discussions or court proceedings.
  1. Sit down with a customer to discuss in a calm straightforward manner any difficulties he or she has with the services or the accounting. Often misunderstandings can be worked through before positions harden on payment. Often a small compromise on an account is much better than a dragged out fight with a customer, sapping your time and energy, and possibly incurring legal bills.
The above points deal largely with account collection before the need to come into a lawyers office. Frankly the most positive outcome for a business is not to have to hire a lawyer for account collection. While we are happy to provide legal services for this purpose, we would prefer to see accounts all paid on time leaving business to retain our services for more positive purposes.
We hope you find the above to be helpful.
Gary C. Courtney
Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca  

 

SELLING AND PURCHASING A BUSINESS

 

At Courtney Aarbo (www.aflawyers.ca) we attempt to be proactive in providing some general information that may assist businesses now or at some point in the future. We hope you find the information helpful.

 

Obviously at some point in the life of a business, an owner may be contemplating selling the business or buying another business.

 

No matter whether one is selling or buying a business, it is wise to consider the following:
  1. Early Planning– particularly when one is selling a business, it is important to get one’s accountant and lawyer involved as soon as possible.

 

A very important consideration in a sale is for the “Seller” to be able to utilize the $750,000.00 “Small Business Capital Gains Exemption”. At least 2 years before a sale, an owner should consult his or her accountant to determine if the business would qualify. If not, there is a likelihood that steps can be taken to bring the business into line with CRA requirements before the sale. If you don’t qualify this very large tax deduction could be lost.

 

 

  1. Structuring a Deal- all too often clients will present an agreement that has not been structured properly from their point of view or in their best interests.

 

One example is how the sale/purchase price is to be paid. There should be a deposit posted. In an asset sale the purchase price should be properly allocated to assets and goodwill from a tax stand point. If the Seller is going to carry some of the purchase price it is crucial that the loan to the Buyer has been properly set up, been properly secured, and things such as personal guarantees for the loan considered.

 

  1. Share vs Asset Sales- there is a major difference from both Sellers and Buyers viewpoint between a transaction where the Seller signs over his or her shares in the corporation, verses selling assets and goodwill. It is extremely important for both sides to consult their accountants and legal advisers on the point, before they commit to a deal. Some of the considerations are; 

 

•     Business liabilities- in a properly documented purchase of assets, generally speaking the Buyer takes them free and clear of the Seller’s secured or unsecured or unknown creditors. With a share purchase, the Buyer takes over the corporate Seller by becoming the shareholder, but also will inherit any of that corporations problems- known and unknown. Generally it is a bit of a risk for Buyers.

 

•     Tax issues- if a Seller can take advantage of the $750,000.00 Small Business Capital Gains Exemption by a share sale, that is a clear benefit. A Buyer may rather wish to buy assets so that the Buyer gains ability to depreciate the assets on a yearly tax filing basis.

 

•     Existing contracts- generally it is easier to assume the business contracts of an existing corporation by buying its shares, as that corporation legally continues to run its business, with the existing contracts. When buying assets this is not the case and there will be a greater need to deal with any existing contracts by having to contact and possibly negotiate new agreements or assignments of old agreements to the new owner.

 

•     Employees- in a share sale, the corporate employer continues as the employer. Employees continue in their jobs. If the Buyer doesn’t want an employee, special terms may need to be agreed to where the Seller terminates the employee and pays severance, otherwise the Buyer will be responsible to pay full severance sometime in the future. In an asset sale, the Seller no longer runs the business, and generally terminates all employees, paying them severance. It is usually agreed that the Buyer will hire back the employees it wants to keep- but severance will still have to be paid by the Seller. Obviously the issue of employees needs to be carefully addressed in the deal’s negotiation stage, not as an after thought.
  1. Conditions of the Deal- often there will be several conditions put in the agreement, which if not fulfilled, will allow the Buyer to not close. It is very important that these conditions be kept to a minimum, and are reasonable from the Seller’s perspective. If not, the Buyer is given an ability to walk away from the deal without the Seller having any recourse. It is very important to the Buyer that critical matters are made conditions.

 

  1. Reviewing the Lease- the premises lease almost always needs to be taken over or negotiated by the Buyer. The lease terms need to be reviewed early in the process. Usually, being satisfied about the lease is a condition of the sale.

 

  1. Non- competition/ Non-solicitation Clauses- these can be critical to both sides. Obviously the Buyer does not wish to buy a business, and find its value diminished by the Seller competing. The Seller does not want to be prevented from making a living in the future. A reasonable compromise of the 2 competing interests needs to be incorporated.
Obviously, the above points only scratch the service of these issues and can only be properly dealt with by a full consultation. We hope you agree however, that it is important to be aware of all of them in any sale/purchase process. The critical piece of advice that we do urge you to take is the need to consult accountants and lawyers early in the process, before mistakes that cannot be corrected are made.
If we can be of further assistance we would be pleased to speak with you.
Gary C. Courtney
Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca

 

Providing Information to Assist Small Businesses

By Courtney Aarbo Barristers & Solicitors

It has been our experience at Courtney Aarbo that in sales of rental property there is some confusion about what is required to be done by seller’s to comply with the “Residential Tenancies Act of Alberta”. Failing to comply with this legislation can result in great complications or even not being able to close the real estate deal.
As a first point one should note clause 2 (1) of the Act, which exempts certain types of rental properties from its provisions. These include rentals of mobile homes and rooms rental within the landlord’s home (boarders).

 

Assuming the Act applies, and the Seller is attempting to sell a home or condo that is rented with either a yearly or monthly lease, and the Buyer is planning to move in as apposed to continuing to rent, then the Seller is going to need to properly terminate the lease as of the sale closing date, or earlier. Failure to do so will breach the Seller’s obligation to provide the Buyer vacant possession under the contract.

 

If the Lease is a ‘month to month’ lease then section 8 (1) (b) of the Act requires the landlord (the Seller) to give the tenant notice on or before “the first day of the notice period.” The notice period is defined as being 3 consecutive ‘Tenancy months’. By way of example, if the sale is to close on July 1st, then the month to month tenant must be given proper notice to vacate by no later than April 1st.

 

If the Lease is a yearly tenancy then section 9 of the Act requires that a landlord give notice to the tenant “on or before the 90th day before the last day of the tenancy year”, to be effective at the end of the lease year. Section 10 (c) does allow a notice to terminate a yearly tenancy that is late to be effective 90 days later so long as it is served before the end of the tenancy year. By way of example, if the lease year ends June 30, a notice would need to be served on the Tenant on or before April 2nd to be effective June 30th. If however it was served on June 1st, it would be effective 90 days later. If the landlord (the Seller) did not serve the tenant until July 1st, into a new tenancy year, the notice would not terminate the tenancy until June 30th the following year- obviously a problem if the real estate deal close date is only one month later.

 

Please note that by section 10 of the Act the notice to terminate must

 

 

a)      be in writing;

 

b)      be signed by the person giving the notice (landlord) or the landlord’s agent;

 

c)      set out the reason for terminating the tenancy example: a sale of the property;          

 

d)      identify the premises for which the notice is being served; and

 

e)      state the date on which the tenancy is to terminate.

 

 

Service of the notice can be effected under Section 57 of the Act by personal service, registered mail, or certified mail. If the landlord cannot serve because the tenant is absent from the premises, it can be left with an adult or posted to the premises door.

 

Of course if the Buyer is purchasing the property with the idea of not continuing to rent it, then provided the Buyer wants the existing tenant, no notice to terminate needs to be given. The Seller will however have to assigned the tenancy agreement to the Buyer, notify the Tenant of his or her new landlord, and properly adjust on closing for rent paid and damage deposits. These adjustments are usually calculated by the Seller and Buyer’s respective lawyers.

 

For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta T2N 3P4or info@aflawyers.ca or phone 403-571-5120.

 

Gary C. Courtney

Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca

 

Commercial Lease Basics

 

By Courtney Aarbo, Barristers & Solicitors

 

Providing Information to Assist Small Businesses

 

One of the most important, and costly agreements entered into by virtually all businesses new and old, is a commercial lease for their premises.

 

The standard lease agreement for commercial space will almost always be the longest and most difficult to understand “standard form” agreement one will have to deal with. The lease agreement of the 50 page variety will almost without exception be extremely one sided providing the Landlord with everything conceivable, and the Tenant with the minimum possible protection.

 

Despite what the leasing agent of the landlord lets on, the Tenant has a lot of bargaining power. Many of the one sided terms in the standard form lease blank can be eliminated or amended, resulting in large savings to the Tenant.

 

Given all these factors it is a very wise investment to retain professional help such as a lease broker and / or lawyer to help.

 

What follows are general recommendationswhen dealing with lease negotiations and the lease itself:

 

  1. The commercial leasing agent, while useful to advise you efficiently as to the rental space on the market, is not the best person to provide you with advice on whether you are getting a “good deal”. Remember, the leasing agent is paid usually a percentage commission by the Landlord, only if he rents the space.

 

  1. It is critical that you have an idea as to the market rate for space before you start bargaining on a specific location. Look around. Make inquiries. You should  approach your search in a fashion similar to how you would look for a house.

 

  1. Everything is negotiable (within reason).

 

  1. Gross rent usually means the total amount the tenant will pay to the Landlord- it is a fixed sum. Net rent plus operating costs is not a fixed sum. The net rent to the Landlord (his “profit”) is fixed, but the operating costs will fluctuate (usually going up) through the lease term. Often the operating costs are more than the net rent. With Gross rent you should have a known fixed sum per month for you to pay during the entire term.

 

  1. Most commercial leases involve net rent plus operating costs. It is crucial that you obtain a history of the operating costs for the space and that you have a good assurance as to what to expect during the lease term. For example, if a property tax reassessment is in the works- it has been known for operating costs to double in one year due to property tax increases. It is critical that you obtain a detailed definition of what is included in operating costs. Sometimes Landlords try to charge inappropriate items as operating costs. It is critical that the lease stipulates that the tenant get a proper account of the operating cost charges each year.

 

  1. If you operate through a corporation, personal guarantees of the rent payment by your corporation are almost always requested, but can frequently be eliminated or reduced in negotiations. Remember that you set up a corporation to avoid personal liability, so it is obviously unwise to lose the protection through a huge personal guarantee.

 

  1. Tenant inducements like several “free” months rent, or money towards tenant improvements are regularly given by Landlords (and appreciated by tenants starting out in business). Nothing comes “free” however, as most Landlords will have calculated the payback for the tenant inducements by requiring higher rent during the balance of the term. If you don’t require tenant inducements, then require lower rent.

 

  1. Most commercial leases involve a 5 or 6 page “Offer to Lease” and a 50 page lease (to be signed later) The Offer to Lease is a binding legal document that may in fact constitute a binding lease. Most major terms are set out in the offer. Going to your lawyer for advice on matters covered in the Offer to Lease, after it is signed is too late. At a minimum make sure the offer contains a term that it is subject to approval by your lawyer, and that your lawyer can propose reasonable amendments to the lease itself. Better yet, call the lawyer in during negotiations, where he or she can do the most good.

 

  1. Get any “verbal” assurance put into the offer and lease. Virtually all offers and leases have a clause that says there have been no representations except what is in the document in writing. If it is not written in, you may not get the concession.

 

  1. That 50 page document which the leasing agent says is “standard” contains 50 pages of detailed legal clauses, many of which you will have difficulty understanding and many of which should be eliminated or amended. These clauses are important. The fact that it is the “Landlord’s Standard Lease” should tell you that it is written for the Landlord’s benefit, not yours. Have your lawyer review it before you sign it.

 

For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta T2N 3P4or info@courtneyaarbo,ca or phone 403-571-5120.

 

Gary C. Courtney

Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca  



Ten Common Problem Terms in Commercial Leases

By Gary Courtney, Barristers & Solicitors

Providing Information to Assist Small Businesses

 

One of the important and costly agreements entered into by virtually all businesses new and old is a commercial lease for their premises.

What follows is some commentary on terms of commercial leases that often cause tenants difficulty:

  1. Commencement of the Lease Term. When reviewing a lease one will normally find that a Landlord will only agree to use its best efforts to deliver the premises on a specific date, and be released from liability for any damages which may arise as a result of late possession. For the tenant a fixed possession date might be critical. There should be a provision setting an outside date by which possession must be delivered. The commencement date should provide the Tenant ample time move in and open for business.
  1. Percentage Rent. Many Leases contain provisions for additional rent to be paid based upon a percentage of gross sales. The definition of gross sales is critical and those items included and excluded from gross sales should be carefully reviewed. Better yet, try to have this clause omitted.
  1. Operating/ Additional Cost. The definition of these costs is critical to the overall costs to the tenant of the lease, as these cost payments can be substantial. The definition of occupancy costs should be reviewed carefully to ensure that there is no double charging, for example, by including both a depreciation charge and a capital cost replacement charge for parts of the building that need replacing. Care should be taken to ensure that the portion payable by the tenant is the proportion the leased premises bears to the whole of the rented and rentable area of the building. In the event there is a vacant space in the building, the Landlord should bear the common area costs in respect of such vacant area. It is also essential that your agreement provide proper and full accounting of the claimed costs.
  1. Insurance. The types and dollar levels of insurance required of the tenant should be reviewed with insurance advisors to confirm a tenant is able to comply with such requirements.
  1. Caveats. Commercial Leases normally prohibit the tenant from filing a copy of the Lease with the Land Titles Office. This provisions is inserted as Landlords do not wish the business terms of each Lease transaction to be available for public scrutiny. However, the Lease should not prevent the tenant from filing a Caveat at Land Titles on title to the property to protect its interest in the lease, (only available if the Lease term is three years or more). It is critical to register this caveat or else you risk having your lease ignored by a future buyer or financier of the property.
  1. Subletting and Assignment. Any prohibitions that require a landlord’s consent should be qualified by the proviso that such consent will not be unreasonably withheld. These clauses are very complex and need to be carefully reviewed. These clauses become critical if the tenant wants to move location for example.
  1. Option to Renew. Should be contained in virtually all Leases. The Option to Renew usually provides that if the lease is renewed for a new term it will be on the same terns as the initial lease, except for the amount of rent. An option to renew should provide for some fair method of determining the rent for the new term.
  1. Default. All default provisions (except perhaps for a default in the payment of rent) should be qualified by the requirement for the landlord to give notice to the tenant and provide the tenant with a reasonable period of time within which to remedy any default before the landlord is permitted to exercise its remedies under the lease.
  1. Demolition Clause (Sale Clause). Allows for the termination of the lease in case of demolition or sale of the premises. If the landlord wants one the tenant should investigate what is happening at the property and perhaps argue for terms compensating him if the clauses are acted upon.
  1. Environmental Clauses. These terms should be carefully reviewed to insure the tenant does not have to pay for the clean up of environmental problems for which it is not a fault.
For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta T2N 3P4or info@aflawyers.ca or phone 403-571-5120.
Gary C. Courtney
Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca

 

Insurance Contracts

 

By Gary Courtney,  Barrister & Solicitor

 

Providing Information to Assist Small Businesses

 

Typically most businesses will have fire insurance, business interruption insurance, and general liability insurance. Less common types of insurance include motor vehicle insurance, life insurance for owners and employees, and disability insurance for owners and employees.

 

Obviously insurance contracts can be critical to the life of one’s business, or for yours or your employees well being. For virtually all of us, the only time insurance policies are gone through in detail is when a claim is being made. Sometimes the policy will first be reviewed when the insurance company has denied a claim.

 

Insurance policies tend to be very long, very difficult to read and understand, and have a good deal of “fine print”. In spite of this, these agreements need to be thoroughly reviewed BEFORE one needs to make a claim. If is important for any business to obtain the advice of a good insurance broker or agent, with experience in assisting business owners.

 

If one does not have the time or inclination to review insurance policies exhaustively, one can lessen the risk of not obtaining proper coverage by making it clear to the insurance agent/broker, what kind of insurance coverage is desired, to cover what eventualities. Your request for advice from the agent/broker should be in writing, keeping a copy for yourself. In the event that a claim is made for insurance coverage of the kind you instructed the agent/broker you wanted, and it turns out that coverage was not provided, it is possible that one will be able to claim negligence against the agent/broker,

 

It is good practice to ask the insurance agent/broker to explain (in writing), the exclusions under the insurance policies. In the event your claim is later denied for an exclusion that was not set out, one may be able to successfully claim against the agent/broker, or insurance company for coverage.

 

Never give false information, or omit to provide relevant information to an insurance company. Information that one fails to mention in an insurance application, often will be grounds for a denial of coverage when a claim is made.

 

It is good practice to review the adequacy of insurance coverage periodically as one’s business grows and changes.

 

In the event that a claim for insurance is denied, consult with a lawyer. When one makes a claim on insurance, one becomes a liability to the insurance company, which liability the insurance company often attempts to minimize. Sometimes an over zealous insurance adjuster will interpret terms of the insurance contract in ways that will not stand up if challenged. It may be that a letter from the lawyer will change the adjusters decision. Courts generally will interpret provisions of insurance agreements strictly against the insurance company.

 

For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta T2N 3P4or info@aflawyers.ca or phone 403-571-5120.
Gary C. Courtney

 

Courtney Aarbo Barristers & Solicitors

 

www.aflawyers.ca

 

 

Unanimous Shareholder’s Agreements

By Gary Courtney, Barrister & Solicitor



A typical unanimous shareholders agreement (USA) is an agreement signed by some or all (usually all) shareholders of a private corporation to deal with certain issues that may come up in the life of a corporation in the manner agreed to.

To back up a bit, in a corporation with no USA, it’s day to day affairs are run by a board of directors, who are elected annually by voting shareholders. The power of the shareholders to manage the corporation is basically limited to being able to vote in or out a director, and having to approve by a 2/3rds vote, fundamental changes to the Articles of Incorporation of the corporation (see the Alberta Business Corporations Act).

A typical USA will take some powers away from the board of directors and give them instead to the shareholders to approve. A ‘shareholders agreement’ can set out that certain action requires unanimous consent or less than unanimity of shareholders is needed red  (for example 67%).

Issues to be voted on by shareholders often include ones such as going into debt, spending money above a certain amount, issuing new shares, bringing in new shareholders, moving business locations, etc… Shareholders agreements also typically may deal with long term major issues, like;
–         How personal guarantees by shareholders of corporate debt will be handled, and that risk shared;
–         Provide remaining shareholders with a right of first refusal to buy a departing shareholders shares;
–         Provide for a trigger to force a buy out of a shareholder where it is necessary for him/her to be bought out, called a ‘shotgun’ clause;
–         Provide for buyouts on death, disability, or personal crisis in the lives of shareholders;
–         Set out a valuation formula for shares in any of the above situations;
–         A non-competition clause, confidential clause, and/or non-solicitation clause in the event of a shareholder leaving;
–         A dispute resolution mechanism for handling shareholder’s disputes.

Obviously USA’s are a key mechanism to deal with the longer term serious issues that are certain to come up in the life of a corporation where there is more than one shareholder. For example, unless all shareholders agree to wind up/ sell the business at the same time, there will be a future scenario where a shareholder leaves, and the remaining shareholders want to continue on. The USAallows this to occur without major disruption.

Another reason to consider having a USA deals with minority shareholders protection. If there are 3 shareholders owning 60%, 20%, and 20% of voting shares for example, the bottom line is without an agreement the 60% shareholders largely controls the corporation (there are a few restrictions on what a majority shareholder can do under the Business Corporations Act). A USAagreement requiring say an 80% or 100% vote for certain important issues will protect the minority shareholder.

So when is an agreement needed? At Courtney Aarbo Barristers & Solicitors we recommend one be considered anytime there is more than one shareholder. The more shareholders there are, the more important having a USAbecomes.

If you have questions about unanimous shareholders agreements, or in fact any issue facing your corporation, the lawyers at Courtney Aarbo would be happy to discuss the issue with you.

For more information contact Aarbo Fuldauer LLP at www.aflawyers.caor at info@aflawyers.ca or phone 403-571-5120. We are located at 3rd Floor, 1131 Kensington Road N.W., Calgary, Alberta T2N 3P4.

Gary C. Courtney
Aarbo Fuldauer LLP
www.aflawyers.ca  

 

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;

Section  61       If 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  63       If 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  66       If 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.

Section  67       If 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.
Aarbo Fuldauer LLP, 
www.aflawyers.ca  
– 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.

Gary C. Courtney
Courtney Aarbo Barristers & Solicitors
www.aflawyers.ca  
– 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 of  land 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.

Courtney Aarbo Barristers & Solicitors

www.aflawyers.ca  

 

– 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.

 

 

 

Estate Planning for Persons with Disabilities

 

Discretionary Trusts and Registered Disability Savings Plans

 

By Aarbo Fuldauer LLP, Barristers & Solicitors

 

It is always a huge concern for parents of persons with disabilities to estate plan for when the parent dies.  How will a disabled son or daughter be looked after?  Two savings vehicles have traditionally been resorted to, the “Discretionary Trust” and the “Registered Disability Savings Plans”.

 

  1. Discretionary Trust

 

In Alberta, traditionally parents would set up a discretionary trust whereby a Trustee, often a brother or sister of the disabled child, would be appointed Trustee over a sum of money.  This Trustee would invest the fund and pay it out to cover the needs of the disabled child.  Often, any money left in the fund on the death of the disabled child would go back to the parents’ Will to then be distributed to other beneficiaries. 

 

Disabled adults in Alberta regularly receive support payments from the Alberta Government (usually under the “Aish” program).  In the past, the government would allow the disabled adult to continue to receive Aish benefits so long as the amount in the discretionary trust did not exceed $100,000.00.  The discretionary trust thus was a vehicle to purchase “extras” for the disabled adult, above the minimal amount received from Aish.

 

Unfortunately, government officials have recently indicated that the policy of Aish benefits continuing even though there was a discretionary trust for the disabled adult not exceeding $100,000.00, is now no longer the policy.  In the future, the Aish benefits may well be cut off until the $100,000.00 fund is exhausted.

 

In our view, the discretionary trust vehicle should not be considered as a supplement amount on top of Aish benefits anymore.  It may well be however, that the discretionary trust estate planning vehicle is still useful to care for the disabled adult for other valid reasons.

 

 

  1. Registered Disability Savings Plan

 

The preferred vehicle for looking after a disabled adult, after his or her parents are gone, is probably the Registered Disability Savings Plan (“RDSP”).

 

Anyone can set up a RDSP for a disabled person.  It functions a lot like an RESP in that there is no tax deduction on contributions, but any interest, and as well various government grants to top up the fund are not taxable.

 

The maximum amount of contributions is $200,000.00.

 

A parent can contribute to the fund after death through his/her Will and can name the RDSP as a beneficiary up to $200,000.00 from RRSP/RIF accounts.  Money left through an RRSP/RIF from a parent can even be rolled over to the RDSP without the RRSP money being deemed cashed in and taxed.

 

 A parent can name a person to administer the RDSP in the case of a disabled adult beneficiary with a mental disability.

 

 Lastly, and possibly most importantly, Alberta government officials have indicated that an RDSP plan (up to $200,000.00) will not result in the disabled person being cut off from their Aish (government) benefits.  Obviously, this is quite different then the government policy on discretionary trusts.

If we at Aarbo Fuldauer LLP can assist further in the Will documentation required to plan for a disabled beneficiary, we would be pleased to do so.

For more information, please contact the law office of Aarbo Fuldauer LLP, Barristers & Solicitors at:

 

 

Address:              3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

 

Phone:                (403) 571-5120

 

Email:                   info@aflawyers.ca

 

 

Gary C. Courtney

Barrister & Solicitor
garycourtneyaarbo@aflawyers.ca

*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 assistance, please contact a lawyer*