The Notary Group

The Notary Group

The Notary Group

We are members of the Society of Notaries Public of British Columbia. The Notary Group is the trade name for Janzen & Caisley Notary Corp., a Professional Notary Corporation. The information on this blog is just that – information – if you need legal advice, please contact us: info@thenotarygroup.ca, or www.thenotarygroup.ca.

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I swear on my mother’s grave: the unusual ways we make sacred statements

April 7, 2015

By Linda Caisley, CFP, Notary Public

Were you ever asked, as a kid, “do you swear on your mother’s grave”? Did you ever wonder what that meant, exactly?  Or why on earth you would swear “on your mother’s grave”, or “so help me God”, or some other saying?

Swearing something (making an oath) is what we do when we want to indicate that what we are about to say is both incredibly serious to us, and the purest form of truth we can express.  Both elements are necessary – the fact that the statement is as close to true as we can get, and that the subject matter is incredibly serious to us.

For example, I wouldn’t ever swear that I love chocolate (even though that’s certainly very true), because no matter how much I love chocolate, the subject matter of that statement is frivolous.  Who cares that I love chocolate?  No one. To swear that I love chocolate is a complete misuse of my oath.

Misusing your oath cheapens its ultimate importance.  If you regularly swear to frivolous things, how will we ever know when you are really serious about something?  Making off-the-cuff comments like “I swear I love chocolate”; or “I swear I flossed my teeth” means we can’t take you seriously when you swear that you didn’t steal that money, or kill that person.

So what makes an oath different from other solemn statements, promises, vows or pledges?

One thing that differentiates an oath from other kinds of statements or promises is that there are penalties for lying under oath:

  • moral penalties:  you are seen as an untruthful person in the eyes of others, or any deity that you have invoked in your oath
  • legal penalties:  you can be arrested for perjury for lying under oath; consequences could include a criminal record (no more traveling to Mexico, or the States!) or even going to jail for up to 14 years

Another thing that differentiates an oath from any other statement is that when we make an oath, we invoke something sacred to us.  That sacred thing does not have to be a religious thing, but it must be truly sacred to us.

Invoking something sacred has two purposes: it shows us that your statement is of the highest possible seriousness to you, and it carries the implication that if what you are about to say isn’t completely true, and said with utmost seriousness, then that sacred thing you have invoked will be disrespected, profaned, or even lost to you.

Whatever invocation you make should be morally binding on you – you must truly believe that losing this sacred thing will devastate you in some substantial way: perhaps financially, emotionally, spiritually, or physically.

Imagine for a moment that I am asked to swear something “on my child’s life”. Since I don’t have kids, I can’t make such an oath – it simply wouldn’t be true. But if I did have children, and I make a statement like this, I am equating the importance and truthfulness of my statement to the value of my child’s life in my world. Do I really mean to say that if I don’t floss my teeth, my child’s life should be forfeited, either generally, or to me?  Or that my child’s life would thereafter mean nothing to me? 

If I swear that I floss my teeth on my child’s life, then you know that either my child’s life is not sacred to me, or that I am mis-using my oath. Both are epic failures of a responsible person, and both come with moral and legal penalties for improper use.

Swearing on your mother’s grave is a similar invocation of something that might be sacred to you.  You would only make that statement if your mother actually was dead and buried (not cremated and ashes scattered).

In making that statement, you are implying that if you are lying, your untruth will condemn your mother to lie uneasy in her grave for eternity.  If your mother was alive, or you hated her with every fibre of your being, then you would never make this kind of an oath.  It would be neither true, nor sacred to you. You could only make this oath if your mother’s eternal rest was a sacred issue to you.

There are many different ways to make an oath.  The most common way is for people to swear before God in some way.  This means you make some variation of the statement “I swear that [facts] are true, to the best of my knowledge, information and belief, so help me God”. Invoking God’s name means that if you are not telling the truth, God will punish you for your falsehood.

But you don’t need to swear “before God”:

Some religions follow the Bible verse that says “..but I say unto you, Swear not at all…” (Matthew 5:34), which means, if you are of a faith that reads this passage literally, that you must not ever swear an oath of any sort, at all.  

Some religions allow oaths only under very solemn circumstances; some religions, of course, use other books of faith as the basis for their oaths, and different cultures have different societal practices around making an oath:  there is an oath involving a 2 hour Buddhist tea ceremony, one involving the sacrifice of a chicken, some involving burning joss sticks, a number involving burning statements on paper (eg. “may my life be destroyed as this paper is, if I tell a lie”), and one involving merely the raising of one’s hand.

If you simply don’t believe in God, or aren’t sure whether God exists, then you must never use God’s name in an oath, because doing so isn’t a marker of what is actually sacred to you.

If you don’t want to make an oath (or are prohibited from doing so by culture or religion), then you may “affirm” the truth of your statement. Making an affirmation carries the same legal and moral weight as an oath, it just doesn’t involve God.  You say “I solemnly affirm and declare that [facts] are true, to the best of my knowledge, information and belief”. We use the generic phrase “putting you under oath” to mean either swearing an oath or making an affirmation.

Since it is rare for judges to take evidence in person in BC (sworn written statements called affidavits are most commonly used to get evidence in front of a judge), and many business declarations carry the same weight as an oath, a significant part of our work as BC Notaries is putting people under oath.  

If you need to make a statement under oath (no matter what kind!), check our website for a notary near you.

10 Simple Ways to Help Keep Closing Costs Down

March 24, 2015

By Tim Janzen, Notary Public

Here are some simple tips to help you keep some of your costs down when you are buying or selling a house.

  1. Do your homework early: if you are buying, organize inspections and investigations early, so you can address any problems that arise before closing. Find out what utilities you will need, and get them organized. Get your insurance in place. Doing this work on closing could incur serious costs or delays – imagine finding out the day before closing that there was a grow op in the garage you never inspected! There goes your mortgage and your insurance, and your costs just skyrocketed. If you are selling, organize when you will cancel your insurance, and get final meter readings set up.
  2. Don’t assume others know what you want: hire good people to help you, then tell them early, often and clearly what you want. Your broker, movers, REALTOR® and your notary all know that this is an incredibly stressful time in your life, and we’re here to help, but in the end, it’s your deal…. It’s up to you to tell us what you need, so we have the best possible chance of making it work for you. Ask as many questions as you want, no matter how stupid you might think they are – the only stupid question is an unasked question. Repeat yourself if you need to. Repeat yourself if you need to. Repeat yourself if you need to. (See? How silly do I feel writing that, but you get the point!) The earlier you bring up a potential issue, the better (and less expensive), for everyone.
  3. Keep it simple: you can’t avoid every “wrinkle”, but the more wrinkles in your deal, the more expensive it is for you. Wrinkles include things like having unpaid liens or taxes on properties you are selling; being a first time home buyer; buying certain kinds of properties over others; using an “internet” bank (rather than a “bricks and mortar” bank) for a mortgage; using a Power of Attorney; or getting your purchase funds from other family members.
  4. Get your ID in order:  you need 2 pieces of current, valid, government-issued ID, and the names on your ID must match each other. For example, the names “John M. Smith”, “John Smith” and “John Mark Smith” do NOT match, even if they are all referring to you! We need to be able to read the ID issuer name, your full name, the ID number, and any expiry dates. Your Costco card, library card and bus pass will not work. Not having proper ID could cost you thousands of dollars, or a seriously delayed or even failed deal.
  5. Avoid “back to back” deals: if you are selling one house and buying another, try not to set the completion dates for both on the same day. Try to give us at least one day between closings, especially if the properties are in different towns. This will help us cut down problems immeasurably.
  6. Don’t rush to close! If you can set your closing date at least two weeks after the subjects come off your contract, you will eliminate a number of rush fees, potentially saving you several hundreds of dollars.
  7. Don’t leave town: just because your contract is signed doesn’t mean your work is done. If you are out of town in the week before closing, or for the day or two around closing, you will incur extra costs, and, depending on where you go, you might cause yourself some serious closing problems. Imagine trying to find (and pay for) a notary wherever you’re going who is fluent in English, able and willing to take your signatures, willing to act as our agent for ID verification, and then organizing getting the documents back to us properly, all the day before closing! Try to schedule any trips for 3-5 days after the closing date. It will save you hundreds of dollars.
  8. Plan your movers carefully: the possession date and time you negotiated is when the buyers get to move in, not when the sellers have to start moving out! If you are selling, try to get your possessions out at least a day before completion. If you delay your buyers’ movers, you might have to pay for their costs as well as your own. If you are buying, arrange with your movers to get to the new place well after the possession time, not on or before, or you could be paying the movers to sit on the lawn and watch the sellers clear out. If it helps with timing, consider paying your movers to store your stuff overnight, so you’re not still moving at 10:00 at night.
  9. Have your money ready: especially if you are buying, make sure you can access your funds easily, so you don’t unintentionally delay your closing while we wait for your money to arrive or become available. If your money is invested, get it liquid. If it’s in an “internet” bank (Tangerine, or PC Choice Financial, say), start the transfer process early – it might take 3-5 business days. If it’s in an RRSP, give yourself lots of time to fill in the right paperwork, and address tax questions. If your money is coming from another source – maybe parents? – check with your broker or lender – you might have to have that money in your bank account for several months before you can use it. If you are selling, make arrangements to come get your money the next business day after closing!
  10. Use a REALTOR®: if you are doing a “private” sale, your legal costs will most likely be higher (especially if you are buying), for several reasons. For example, your contract might be missing certain important elements; you may spend time asking your notary questions your REALTOR® would normally have helped you with; or you may have unintentionally negotiated a deal which is difficult or impossible to carry out.

Personal Care: who gets to decide where you live when you can’t?

March 14, 2015

By Linda Caisley, CFP, Notary Public

Think your friends or family will just sort you out when you become unable to care for yourself?  Would you be surprised to learn that they might not even be able to make you brush your teeth unless you specifically appoint them?

In BC, we are all presumed capable of deciding what we want to do about our personal care. So you get to decide:

  • where you live, whether you work, what you eat or dress like

  • whether you get to participate in any social, educational, vocational (work) or other activities

  • who you connect with as friends and in your personal relationships

  • whether you drive a car, fish, or hunt, or have any other approvals you need to carry on with your life or you work

Note that we’re not talking about “health care” decisions here – that’s a whole other part of your life.  This article is strictly about “personal care”.

What happens when you can’t make these decisions for yourself? Or when the decisions you are making start to become questionable?

There are very few options:

  • you can appoint someone to make these personal care decisions for you in a representation agreement

  • a “designated agency” (usually your local health authority) can try and help you get some of the services you might need

  • a family member can go to court and ask to be appointed as your guardian (called a “Committee”)

  • the Public Guardian and Trustee may take steps to become your guardian (your “Committee”) if you have no family to do so, and you never appointed anyone as a representative

Unlike health care, you cannot leave instructions for others about the kinds of personal care you want. You can make an advance directive that tells others that you do not want CPR, or other life support (even if doing so means you die), but you cannot make an advance directive that tells others to stop feeding you, or stop giving you hydration to the point that it ends your life.

And that Power of Attorney you made? It’s important, but it only covers your financial affairs – it does not give anyone power over your personal care.

The simplest option (and the one that lets you control your destiny as much as possible) is to appoint someone as your representative under a Representation Agreement. This person you appoint – your representative – can make any of these personal care decisions for you. They don’t even have to completely take over for you – they can just help you make these decisions.

For example, if you have an illness or disease that progresses slowly, such as dementia, Alzheimer’s or Parkinson’s, there will be a time at the beginning of this diagnosis when you will continue making all of your decisions yourself. At some point, you may want someone to help you sort out things like where you should live, and when you should stop driving. Even later, you may simply want to hand over these decisions to your representative, so they can make them on your behalf.

It’s important to note that your representative can help you with any personal care you might need, but they cannot withdraw any personal care services which are necessary to preserve your life. In other words, your representative cannot starve you to death, or stop giving you hydration until you die of dehydration.

If you never made a representation agreement, then your options are very limited, and you may find yourself the result of an investigation by your health authority, or a court application.

You have two basic options for personal care, if you never made a representation agreement:

Designated Agency Assistance

A “designated agency” – usually your local health authority – will investigate what is happening in your life to determine whether you need support and help.

If the designated agency decides that you need help, it can:

  • refer you to various services in your community

  • decide whether you need help getting these services, and if so, actively help you get these services put in place

  • tell the Public Guardian and Trustee about your situation

Committeeship

If you are truly unable to manage yourself, your affairs, or both, then someone must be appointed as your “committee” – your guardian. This means a friend or family member must ask the court to have you declared incapable, and to have themselves appointed as your guardian. If you don’t have a friend or family member who will do this for you, the Public Guardian and Trustee can apply to be your committee.

This process can take anywhere from 6 weeks to 6 months, depending on who is fighting with whom in your life, and can cost anywhere from $3,000 to $20,000 (again, depending on how badly your family fights with each other over what to do with you).

Your friends and family simply do not have the legal authority to make these decisions for you unless you appointed them as a representative, or they go to court and have themselves appointed as your guardian or committee.

You can make a representation agreement yourself, or you can hire us to help you make one. Visit our website to find a notary near you to help you make a representation agreement.

Why use a BC Notary for Conveyancing?

March 4, 2015

By Linda Caisley, CFP
Notary Public

Wondering about whether to use a lawyer or a BC Notary Public when you are buying or selling your home (called “conveyancing”)?  Here’s how a BC Notary can help you with your conveyancing:

A Full Range of Legal Services for Conveyancing

In addition to traditional conveyancing services, BC Notaries can also:

  • review title search results and contracts with clients in the “subject removal” stage

  • conduct detailed titles investigations, or help REALTORS® with additional due diligence

  • give legal advice with respect to any aspect of a conveyance

  • draft private contracts for clients directly, or help REALTORS® draft unique terms for contracts where needed

  • review strata documents with clients

  • help clients work through any aspect of a complicated deal, including rush deals, late closings, “ready, willing and able” issues, collapsing deals, transactions involving non-residents, back-to-back transactions, foreclosure properties or transactions where clients are away

  • help clients who are selling for an estate, or using a power of attorney

  • add or remove people from title due to marriages, separations, or death

  • help clients negotiate with other parties to their contracts, their legal representatives, or REALTORS®

  • help clients create, execute and register subdivisions, easements, rights of way, covenants and other real estate development issues

A quick note about fees:  while most BC Notaries charge set fees for simple conveyances, rather than charging hourly rates, these additional legal services are usually charged out on an hourly rate.  Contact us for an estimate.

What we don’t do:  BC Notaries (and good lawyers specializing in conveyancing) do not represent their clients in court; litigation is rarely required for conveyancing, but when it is required, the work should be handled by an appropriately trained litigation specialist.

The skills and knowledge base needed to successfully represent a client in court are not the same as those required of a great conveyancing legal services professional.

Imagine if your doctor said “no, you don’t have to go to a gastroenterologist, I can do that colonoscopy myself”!  It’s the same for conveyancing.  If one of our clients decides to litigate an issue that simply cannot be resolved any other way, we will refer them to an appropriate litigation specialist, just like a great lawyer would.

Education & Experience

BC Notaries are specifically trained in conveyancing (rather than receiving a general legal education), and must take required continuing education every year.  A significant portion of our annual continuing education deals with conveyancing issues.  Lawyers are not required to take any training in conveyancing before practising in this area of the law, or on an ongoing basis.

Many BC Notaries focus their practices substantially around conveyancing matters, and therefore have a significant amount of knowledge and experience to benefit their clients.  BC Notaries are also trained in mediation, which allows us to help our clients solve any issues which arise in the middle of a transaction.

Insurance & Governance

All BC Notaries must carry professional liability insurance in order to maintain their ability to practice.  The Society of Notaries Public of British Columbia governs BC Notaries, and has great information on their website about BC Notaries.

Culture and Approach

BC Notaries are trained problem-solvers.  When an issue arrives on a file, we approach it from a mediative approach, rather than an adversarial approach.  While we might not be able to resolve every issue, our goal is to protect our clients while we help work out a solution to the issue at hand.

Is the client’s mortgage funding late? We can help work out options. Need early possession?  We can help negotiate changes to the contract, or early possession agreements.  Is the client in a back-to-back deal with a delayed sale?  We can manage that too.  Need additional debts paid out on closing?  We can help.  Have a client who is incapable, or who has passed away?  We can help. Clients in a divorce?  We can help ensure the payouts meet with the terms of a separation agreement or court order.

We respect the professional input and roles of our mortgage broker and REALTOR® colleagues, and work hard to work with them when problem-solving. Since conveyancing makes up a significant portion of our practices, we are also efficient, and good at explaining complex legal issues to clients in appropriate ways.

A recent survey showed that more British Columbians rate their impression of notaries higher than they do of lawyers.  Clients were also very happy with the service their BC Notary provided them.  In many cases, with conveyancing, your BC Notary will take a very hands-on and personal approach to client service.

The Notary Group

The Notary Group is the Okanagan’s largest professional notary corporation.  With 7 notaries in 7 offices from Osoyoos to Kelowna (including one second and one third generation notary), and almost a century of combined experience, we can efficiently and effectively serve a wide range of clients throughout the Okanagan.  We also have a large support staff experienced in all areas of real estate.

Check out our website for a location or notary near you, or e-mail us at info@thenotarygroup.ca.

Travel Consent Letters for Children: why your ID matters

February 16, 2015

By Tim Janzen, Notary Public

Have you ever let your child travel to Disney World with their grandparents? They have a great time, and you have a nice, quiet week at home.

When you let your child travel out of the country (and make no mistake, even the United States is another country!), the Government of Canada strongly recommends that you make out a travel consent letter, giving permission to the people taking your child, and setting out your child’s personal information, with details about their proposed trip, and the people who will be taking them.

This travel consent letter isn’t legally required, and there is no legislated format (or signing formalities) for it, but it is recommended that you have this consent letter be notarized.

Getting a notarized travel consent letter might seem like overkill when your parents are just taking your kids to Disney World, but what happens when your former spouse takes your child out of the country?

Hundreds of children are wrongfully abducted from Canada each year, very frequently by a parent who has family ties to another country.1 Getting an abducted child back is incredibly difficult, expensive and can take a very long time. It is devastating to the parent who has to fight to get their child back.

http://travel.gc.ca/travelling/children/consent-letter

If the person traveling with your child can produce a notarized travel consent letter, the officials who are letting your child travel trust that an abduction is not likely in progress.

In most cases, as notaries, we don’t personally know the people who come before us to have their signatures on a travel consent letter notarized. So how do we know that the person in front of us has the right to give permission for your child to leave the country? How do we prove that the person giving this permission is, in fact, you?

In short, your ID. When a person cannot produce appropriate ID, we will not take their signature on that travel consent letter.

Your ID must meet certain criteria. For example:

  • you must have two pieces of government-issued ID (your Costco card, library card and bus pass DO NOT count!)

  • one of the pieces of ID must have a photo on it (and that photo must be of you!)

  • one of the pieces of ID must have your signature on it (so we can compare it to the signature on your letter)

  • your ID cannot have expired – check the dates on your ID well before you come to see us in case you need to have it updated (and give yourself lots of time to get it updated if necessary)

  • your ID must be intact – we must be able to read your name on it, see your picture, see the unique identifying number on it, and determine who issued the card – we will not take broken, taped together or chewed on cards

  • the names on your ID must match each other, and the name on your document – think of how many people on families have similar names:

    • Mary Smith is NOT necessarily the same person as Mary Jane Smith

    • Chen Liu is not necessarily the same person as Liu Chen

    • Allan J. MacLeod is not necessarily the same person as A.J. McLeod

So when you are planning your trip for your child:

  • do not rely on solely travel consent letters provided by a school or church – do your own research into what is required for your child to travel

  • make sure to check your own ID very early on in the process – you may need to have your own ID sorted out before you can make arrangements for your child, and this might take several weeks

  • check the policies of the country your child is traveling to, to ensure that you get the right documentation for both exit and entry of that country, and of Canada – each country has different requirements for entry and exit

  • ask the transportation company your child will be travelling with about their policies and regulations for child travellers

When you have your travel consent letter filled out (but not signed!), and your ID meets the necessary requirements, please check our website to set up an appointment with a notary near you.  We will be happy to help you.

Estate Tax Eliminator Gifts: are they effective?

January 21, 2015

By Linda Caisley, Notary Public

When we make a will for you, we will ask you whether you would like to make a gift to a charity through your estate.  Giving a gift to a charity in your Will is a wonderful way to keep enriching your community after your death, and to give one last boost to causes that were important to you during your lifetime. You might even be able to give a bigger gift through your estate than you could have made during your lifetimes.

If you leave a qualifying charitable donation in your will, your estate will receive a charitable donation receipt, which can be used to offset the taxes it must pay on your final return.

There is a wills clause that some clients ask about from time to time called the “estate tax eliminator clause”. The idea with this clause is that your executor determines how much tax your estate will likely have to pay on your death, and then makes a donation to a charity that will produce a charitable donation receipt big enough to offset this tax.

It sounds like a great idea, but is it effective? The only way this clause can be effective is if the charity can actually issue you a donation receipt, and that might not happen unless it can meet all of the requirements for a charitable donation.

A charitable donation is a type of gift. A gift has several important elements:

  • the donor must own the gift: you can’t give away what you don’t own

  • the gift must be voluntary: you must be making the gift because you want to, not because you have to, or because you have been pressured into doing so

  • there can be no consideration for the gift: you must not receive any advantage in return for the gift, and you cannot have any expectation that the beneficiary of the gift will do anything (or give anything) in return for the gift (charitable donation receipts being the exception as long as they are only issued when certain criteria have been met)

  • the gift must be of real or personal property, not of services: you can’t make a donation of your time, or your personal services, only your money or your assets

  • the person giving the gift must have what is called “donative intent”: you must intend to make a gift, not to enter into a contract, or make an exchange (this is an important criteria when considering charitable donation receipts)

  • the gift must be both appropriately given, and received: it’s not enough for you to simply send a cheque to your grandson at Christmas, he must receive it and deposit it into his bank account; in some cases, with large gifts, deeds of gift are useful, so the beneficiary can acknowledge receipt of the gift; likewise, if the gift is of a larger asset, you must deliver the registration documents, keys or other “ownership” records

So consider again the idea of including a clause in your will that asks your executor to make a donation to your favourite charity, in an amount large enough to eliminate your final tax.

Firstly, do you have donative intent? Likely not, as your primary purpose (often blatantly stated in the wills clause) is not charitable, but rather to accomplish specified tax planning goals. If CRA determines that you did not intend to make a gift, then no charitable donation receipt can be issued.

As well, if the amount of the advantage back to your estate is more than 80% of the fair market value of the gift, then the charity may not be able to issue a donation receipt for the gift. Your charity must get an opinion from CRA before it can issue a charitable donation receipt if it believes this could be a problem.

If your will requires your executor to give a substantive donation to a charity, and it turns out that the charity is not able to issue you a charitable donation receipt, your executor cannot simply cancel the donation.

Your executor, once probate has issued, must carry out the terms of your will, even if the consequences end up being different than what you expected. In theory, the charity could potentially turn down the gift if it was not able to issue the receipt you expected, or, if the clause was carefully worded (such that the gift failed if an appropriate charitable donation receipt could not be issued), but those options are not guaranteed.

Alternatively, if the charity does issue you a donation receipt and your estate gets audited, CRA can potentially overturn the issuance of the donation receipt.

Think carefully before including an “estate tax eliminator clause” – it could be devastating to your estate financially if it is required to give a charitable donation without the benefit of the anticipated charitable donation receipt. If in doubt, you may wish to get a ruling from CRA as to whether a charitable donation receipt could be issued under the circumstances. An accountant would be able to help you with this.

Visit our website for a notary near you; we would be pleased to help you make a charitable donation in your will.

Ruining a True Joint Tenancy: it’s easier than you think

January 13, 2015

By Tim Janzen, Notary Public

Ever wondered about whether you should add one of your adult children on title with you as a joint tenant in order to “make things simpler”, or to avoid probate? In some cases, adding a child on title to property doesn’t necessarily do what you, as the parent, are expecting.  It can also result in some very complicated legal battles after you have died.

When you ask your notary or lawyer to add someone on title with you as a joint tenant owner, be prepared to talk to us about whether you want that person to be a “true joint tenant owner”, or a “joint tenant in name only”.

A true joint tenancy must meet 4 criteria:

  • unity of time:  all of the owners’ interests must all be created at the same time
  • unity of title:  the ownership interests must be created using the same document
  • unity of interest:  the owners must all have the same interest in the property
  • unity of possession:  each of the owners has a right to possess the whole property

True joint tenancies come with rights of survivorship. This means that if one joint tenant passes away, the remaining joint tenant (or tenants, if there are more than one) takes a copy of your death certificate to the asset holder or registrar (the bank, or the land title office, for example), fills out some paperwork, and the asset is put into their name as surviving joint tenant. No probate is required.

Probate is the process in which your executor formally asks the court to acknowledge your Will, and to recognize their appointment as your Executor. Probate isn’t always necessary. While there are some good reasons for wanting to go through probate, it is a formal court process which takes time, and involves expenses and fees.

Most spouses, for example, own their home together as true joint tenant owners.

A joint tenancy in name only happens when only some (but not all) of these four criteria are met.  It may look like a joint tenancy superficially, but it really isn’t.  Rights of survivorship do not automatically happen when you have a joint tenancy in name only.  The property might actually end up being held in trust – a kind of trust called a resulting trust.

For example, consider a mother who puts her eldest son on title to her home, to make things “simpler”, or to “avoid probate”.  She still thinks of the home as hers alone, and her son doesn’t pay anything to her for the property when he goes on title, nor does he contribute to any of the expenses or upkeep for it.  Son doesn’t live there and Mom would be horrified if he tried to move in with her.  Mom expects that she would get all of the sales proceeds if she sells the property, and does not expect son to get anything if she sells it while she is still alive.  Mom also expects son to share this property with his 2 siblings if she still owns it when she dies.

In this case, this is a joint tenancy in name only:  son does not have unity of possession (Mom has not given him an equal right to possess the whole property), nor does he have unity of interest (he will not share equally in the sales proceeds when and if the house is sold, and he is expected to share the proceeds of sale with his siblings if Mom has died).

Joint tenancies in name only do not usually have rights of survivorship:  in the example given above, a judge might in fact decide that the son holds the property in a resulting trust for the benefit of mom’s estate.  If the property was subject to a resulting trust, it would have to be included in a probate application, and it (or its proceeds of sale) distributed according to the terms of mom’s will.

Joint tenant owners might have to prove that they have a true joint tenancy, rather than a resulting trust, or a joint tenancy in name only.  That can be difficult to do, especially if you are one of several children.  This is where legal battles start.

Properly prepared documentation can really help here:

  • a Deed of Gift can show that you meant the other owner to have this property by right of survivorship after you died
  • a co-ownership agreement can help document that this was a true joint tenancy
  • a marriage contract, pre-nuptial agreement or co-habitation agreement can document intentions with respect to property
  • a trust deed, or a declaration of trust can set out the fact that this was a joint tenancy in name only, and talk about what was to happen on the death of one of the owners
  • a declaration in a Will can set out your intentions with respect to the property after you died
  • even informal letters or notes can set out your intentions

If a judge can’t easily tell which kind of ownership you intended, they must make certain assumptions, depending on the fact involved.  You might not like those assumptions.  For example, if you added your eldest son on title to your house, and didn’t ask him for any money for it, a judge would have to start with the assumption that you meant your son to hold that property in trust, unless you could show that the transfer was meant to be a true joint tenancy.  It would be deemed a joint tenancy in name only, not a true joint tenancy.

A court can look at a number of things when it is considering whether you have a true joint tenancy:

  • do the four unities exist?
  • what evidence is there that a true joint tenancy was intended – is there documentation? Did you behave as though it was a true joint tenancy?
  • did you and the other owners pay equally for the asset?
  • what do your ownership papers say (and did you really read all of that fine print on the pile of papers you signed at the bank when you opened the account)?
  • who controls and uses the asset?
  • was a power of attorney involved?  If so, why?

In the end, intentions matter.  Documentation provides the evidence for those intentions.  Missing, or bad, documentation can sabotage your plans.  If you are thinking about adding an adult child or other family member on title to an asset with you, contact us to work through some of these complex issues.

Visit our website for a notary near you.

But I don’t want to do it: Undue Influence and Fraud

January 7, 2015

Ever felt like you had to do something, even though you really didn’t want to?

Most of us consult with friends and family before making big decisions, but occasionally our families’ good advice crosses a line from support into outright directives, blackmail or even threats.

We can be influenced by our friends and family (and often should be, to some extent), but when we start feeling like we have to do what they ask us, even if we really, really don’t want to, we are experiencing a form of fraud known as undue influence.

Undue influence is when one person uses their influence over another to get them to do something they wouldn’t normally have done. There are two types of undue influencers – the first being people in a community, like an employer, a minister or a politician, and the other being family members.

In both cases, the power balance between the parties is unequal, and the more powerful person uses their power to get the other to do something they want, like hand over their assets. This can be done by any implied or outright threat to your health, safety, well being or assets (or of a loved one).
The difference between consulting with another person and being unduly influenced by them is whose wish ends up getting followed.

For example, imagine you are 85, and your adult daughter (who lives with and cares for you) asks you to add her as a joint owner on your bank accounts, or on title to your property.

If the ultimate decision to add your daughter on title was truly your own decision, and that decision was made freely and voluntarily, with a careful thought as to what that transfer would mean for your remaining finances and your estate, great.

But if you did this because you believed your daughter wouldn’t care for you any more, wouldn’t get your groceries any more, or would put you in a home if you didn’t do it, then you are not making that decision of your own free will. You are being unduly influenced.

Undue influence is a form of fraud, which means that not only would any actions you took be potentially void, or voidable, but the person who unduly influenced you could be charged with an offence under the Criminal Code of Canada. Undue influence also negates capacity, which means that a judge could find that you were incapable of making a good decision because you were operating under duress.

When we are helping you carry out legal actions such as adding a family member on title to your property, or appointing an attorney under a power of attorney, we have to take steps to make sure that you are instructing us of your own free will – that you are not being unduly influenced.

This might mean we see you by yourself to ask you about your intentions, and to ensure that you truly understand the consequences of your actions. So don’t be surprised or offended if we ask your family members to wait in the lobby when you come to see us – ultimately, it’s for your protection, and theirs. We want to be able to show a judge that you came to your decision all by yourself, with no coercion.

Visit our website for a notary near you, so you can discuss these issues with us in person.

Click here to download: Important Homework for Strata Buyers

Buying a strata property?

Recent changes to BC’s Strata Property Act make it more important than ever for buyers to read a strata’s documentation.  Reviewing these documents should be a “subject to”, or condition of your contract to buy the property.  Give yourself lots of time to read the documents, and if necessary, hire your notary or REALTOR® to help you go through them.

If you are using a mortgage to buy the property, you will very likely have to sign a statement for your lender that you have read these documents, and that you are satisfied that they meet the legal requirements. Your lender could refuse to fund your mortgage if you cannot assure it that the strata is meeting its legal requirements.

For example, does the contingency reserve fund meet legally required minimums?  Does the depreciation report contain the things required by the Strata Property Act?  Will your lender refuse to fund if there is no depreciation report at all?

Call us if you would like help reviewing these documents.

Visit our website for contact information.

February 5, 2014

The Notary Group welcomes Tom Anderson to Kelowna

December 24, 2013

The Notary Group is pleased to welcome Tom Anderson to its Kelowna (Spall and Enterprise) branch.

Tom’s Bio

Originally from Kelowna, Tom is moving from Victoria to join Tim Janzen. We are excited to have him join our team.

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