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62028.06This paper reviews 8 clauses that aren’t commonly found in Alberta wills, but that should be considered during estate planning discussions and drafting. The estate planning provisions discussed include: digital assets; evidence of inability to act; definition of grandchild; personal property; advances; joint assets; statement of intention; and real property interests. This paper is part of a collection presented at LESA’s Drafting Wills and Trusts program held in Edmonton on February 28, 2017 and in Calgary on March 7, 2017.
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61911.01This paper provides a practical guide to bringing claims for unjust enrichment and constructive trust as a result of common-law relationships. Topics covered include: status to bring a claim, practical advice on bringing the claim and other procedural issues involving things like notices to admit facts, affidavits of records and questioning. A helpful Plaintiff’s Check List and Trial Preparation Check List are attached. This paper was presented at LESA's Constructive Trust Claims program held in January, 2014.
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62035.04This paper discusses some of the evidentiary rules and presumptions that apply to estate litigation. It also discusses sources of evidence that may be adduced to support a litigant’s arguments. In particular, it provides an overview of the law of evidence under the Alberta Evidence Act and Alberta jurisprudence. As well, evidentiary issues regarding testamentary capacity, undue influence, and interpretation and rectification of wills are also discussed. In addition, important evidentiary presumptions are highlighted, such as the presumption of advancement and the presumption of resulting trust. This paper is part of a collection presented at LESA’s Estate Litigation Fundamentals program held in Edmonton on April 5, 2017 and in Calgary on April 12, 2017.
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62147.02This paper discusses both evaluative mediation and interest based mediation. It also explores how a lawyer’s role in mediation differs from that in litigation, requiring a shift in attitude from an adversarial approach to a mutual problem solving approach. The paper discusses how to prepare for mediation and draft a mediation brief; it also provides practical tools, including a mediation plan template and a sample issues/interests worksheet. This paper is part of a collection presented at LESA’s Alternative Dispute Resolution program in Calgary on February 19, 2020 and in Edmonton on February 25, 2020.
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62395.01On February 1, 2023, a new version of Alberta’s Trustee Act came into force. This paper discusses the amendments to the Trustee Act, recent amendments to the Estate Administration Act and the Adult Guardianship and Trusteeship Regulation, and judicial involvement. This paper was presented at LESA’s A Year in Review: Judicial Treatment of the New Trustee Act webinar on March 12, 2024.
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62023.06The personal representative’s duty to account to those interested in an estate is central to that role, yet it is often poorly understood. This paper examines that duty to account so that lawyers can better prepare personal representatives for their role. It discusses forms of accounts, and provides examples of disbursements and receipts of capital and income. It also reviews types of accounting, including informal accounting, formal accounting, and applications to dispense with formal accounting. Additional accounting considerations for personal representatives are also discussed. The paper includes, as appendices, a sample clause for a retainer letter, a sample inventory of property and debts (Schedule 5), and a sample estate accounting financial statement. This paper is part of a collection presented at LESA’s Estate Administration Fundamentals program held in Edmonton on November 30, 2016 and in Calgary on December 7, 2016.
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62248.18Estate litigation often involves clients with diminished capacity. This paper addresses the question, “How does the lawyer properly deport him or herself when approached by the aging client who wants to retain the lawyer to represent them?” This paper is part of a collection presented at LESA’s 2022 Refresher: Wills and Estates program in Banff on April 29-May 2, 2022.
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30_44_09This paper discusses issues of trustee liability. Within that discussion, the author first deals with Alberta's Prudent Investor Rules and then with a more detailed analysis of the tax consequences that a trustee should address. This paper was presented at the Wills & Estates' 44th Annual Refresher in 2011.
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30_44_16This paper focuses specifically on trusteeships while describing the similarities between the Adult Guardianship and Trusteeship Act and the old Dependent Adults Act. It also provides a guide to making several trustee court applications. Precedents for an urgent application, a discharge attorney and appoint trustee application, and a limited trustee application are included. This paper was presented at the Wills & Estates' 44th Annual Refresher in 2011.
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30_44_17This paper reviews capacity assessments under the Adult Guardianship and Trusteeship Act [AGTA] and the role of the review officer. It also includes a discussion of the protective measures and the specific decision making and emergency health care provisions under the AGTA. Finally, the paper ends with an overview of how the AGTA has been implemented so far. This paper was presented at the Wills & Estates' 44th Annual Refresher in 2011.
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30_44_15This paper uses the author's personal experience to provide some practical tips on filling out the forms for personal matter applications required by the Adult Guardianship and Trusteeship Act. Precedent forms, as well as a flowchart of the court application process, are included as schedules to the paper. This paper was presented at the Wills & Estates' 44th Annual Refresher in 2011.
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61839.05The author discusses two common options used to enable aging persons to live on their own for as long as possible: Life Leases and Reverse Mortgages (also known as Home Equity Conversion Mortgages). Using a unique question and answer technique, the author effectively addresses many of the questions a practitioner might have when advising clients about the options for securing reliable source of income for the balance of their lives. Drawing on papers previously prepared for the CMHC, case studies are also used to demonstrate the application of these strategies. This paper was drawn from materials presented at the Advising an Aging Population seminar held in May 2012.
