Archive for March, 2012

Estate Planning – Naming the Right Executor for your Will

Saturday, March 31st, 2012

Every will names an executor. The executors function is to become your personal representative to look after all legal matters concerning the rights and obligations that you leave behind, and to carry out the wishes of your last will and testament. I tell clients that your executor is the CEO of your estate.

There are four qualities to a good executor:

1. They have to be trustworthy with money. This means that the person has honesty, integrity, and does not have a history of being irresponsible with financial matters. In my view, this qualification is mandatory for any executor, and any person who does not meet this criteria, should not be your executor.

2. The person should have a fair chance of surviving you, and a good chance of being part of your life when you die. A close family member (spouse, child, or younger sibling, will often meet this criteria). A good friend, neighbour, or business associate, may meet this criteria, but often does not. You should always name a second person as an alternate executor, in case your first named executor dies before you, is unable to act, or simply doesn’t want to accept the appointment.

3. The person should be reasonably diligent and prudent. They do not have to have above-normal intelligence, or have a high-end professional occupation. They should be smart enough to know what they don’t know, and to get professional advice when they require it.

4. It is helpful (but not mandatory) if the person will likely be geographically close to where you reside at your death, and preferably in Canada. When you die, all of your property becomes a trust, and your executor become a trustee of your assets. The location of the trust is the residence of the trustee, which can sometimes have adverse tax implications for your estate.

The person you name in your will as executor does not become your executor until you die, and the person accepts the appointment. Therefore it is always a good idea to ask the person in advance, so that you can feel fairly comfortable that he or she will accept when the time comes.

One final note: I have never seen a situation where it is a good idea to name two persons as joint executors. Naming two or more children (even in the most harmonious of families) is a recipe for disaster. You wouldn’t ask two of your children to drive you to your lawyers office to sign your will, so why would you ask two children to drive your estate. The result in both cases, would most likely be a crash.

The Importance of Documents in Civil Litigation

Wednesday, March 21st, 2012

One cannot stress enough the importance that documents have in civil litigation. Whether it be a contract dispute, personal injury claim, or divorce case, the identification, collection, and organization of documents is critical to the success of most lawsuits. The process of collecting and organizing documents can be tedious and time consuming. If you are considering retaining a lawyer for a litigation matter,it is be extremely helpful and cost-saving if you come to the first meeting with all relevant documents in your possession presented to your prospective lawyer in an organized fashion. It is well worth your while spending a number of hours copying, tabulating, and indexing your documents. Lawyers love to look at matters chronologically, and if your documents are arranged in chronological order the lawyer will be able to quickly grasp the essence of your case. Most law firms now scan their documents, the cost of which is billed to their clients. If you have access to a good scanner, you can save money and time if you scan all of your documents and date and name them. You can then simply provide them to your lawyer on a disk or flash drive. When you get a request from your lawyer for a particular document, you should provide it as quickly as possible, for often the absence of that single document is what is stopping your case from proceeding. If your documents are under control, your lawsuit is under control, and you will have a much better chance of it concluding inexpensively in your favour.

Importance of Medical Evidence in Personal Injury Claims

Monday, March 12th, 2012

When a person makes a claim for personal injury, the medical evidence is the foundation of the claim. The subjective complaints as to how the injury has affected the person’s life are important to support the claim, but without sound, objectively given medical evidence, your claim will not go far. Medical evidence is generally obtained by way of expert opinions from the physicians and therapists who treat and assess you. These experts assess both your subjective symptoms (“doc, my arm hurts”) , as well as their objective findings resulting from their physical examination of you and various tests (x-rays etc.). Often, (particularly in the case of common soft-tissue injuries), the doctor is faced with a lack of objective evidence. In these cases, to a large extent, the doctors are relying on the truthfulness of their patients when assessing the subjective complaints. It is therefor critically important to your claim, that you be open and candid with your doctors – they must believe you and they are trained to know when a patient is exaggerating or being less than truthful. If your doctor doesn’t believe you, then it will be very difficult if not impossible for him or her to give an expert assessment supporting your injury, and without such an opinion, you do not have a claim.