Listen to Guardianship in Canada
This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today’s laws (post-1994) are clearer than they were in the past.
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As a WWII pay officer in the Canadian military, my paternal grandfather met a British woman on the beach when he was stationed in the south of England. They married soon after the War and retired in England in the mid-1960s. My grandfather died in the early 1990s; when my step-grandmother, Tessa, died in 2008, in her Will she left her house to my father and aunt.
If there were no Will, Tessa’s estate could have contributed to the British government’s coffers. In that circumstance, a probate research firm could have played a role.
Title Research is one of the firms highlighted in yesterdays blog about "heir hunters". Its services include: searches for missing beneficiaries, heirs, and legal documents (such as marriage, birth and death certificates back to the 1800s); asset research to value, verify and find missing or unknown assets; missing beneficiary indemnity insurance; probate valuations; and will searches to determine that the Will is the deceased’s last will.
If Tessa had died intestate, Title Research, and other firms, could have located her heirs around the world. Alternatively, if the estate trustee had questions about the value of the estate assets, or had the trustee not known the whereabouts of the beneficiaries, it could have enlisted a search firm’s services as some anecdotes suggest.
Potentially trustees can protect their personal liability by engaging a firm that has a best practices endorsement of Britain’s Law Society. It seems that an estate need not just have ties to the UK, but the extent of a firm’s expertise in a specific jurisdiction would have to be assessed.
Interestingly, some of the detective work can be done by amateur sleuths: www.findmypast.com and www.ancestry.co.uk allow access to census data from the 1800s and a host of other historical information. If genealogy is in your blood, it’s a place to start. And, as one UK law firm suggests, it might be advisable to do some of your own investigating.
In Scotland for my honeymoon, I encountered a few different “estates”. Hiking the West Highland Way – averaging about 12 miles a day – we passed Blackmount Lodge, in the Bridge of Orchy. The lodge, owned by the Fleming family (of James Bond fame) sits on the edge of an idyllic loch. It took a day to walk across the estate.
Fellow walkers from Britain were interested to learn that I work in estate litigation. After sorting out differences in our terminology, they asked if “heir hunters” exist in Canada. I was intrigued.
While I still do not know the extent of “heir hunting” here, I learned that Heir Hunters is a BBC series that follows probate detectives who look for distant relatives of people who have died without making a will. I have not heard of a similar program in North America.
Several UK firms track down missing relatives: Fraser and Fraser and Title Research are two examples. About 545,000 people die in Britain every year and half of them do not have a will. As in Ontario, there are rules in Britain which dictate that when people die intestate, their estate passes to the deceased’s legal next of kin. In Britain, if there is no family, the estate falls to the Crown. The Guardian claims that £10 million to £20 million falls to the government every year because there is no one to claim the estate. Heir hunters locate the next of kin and alert them to their inheritance; there is a finder’s fee of up to 25% of the amount.
Many people in Canada can trace their roots to the United Kingdom. Estate practitioners, if advising estate trustees, would be well served to keep “heir hunting” firms in mind.
Thank you for reading. Enjoy your day.
The contemporary attitude is that we live in a young country. True in some respects. Yet we own the oldest contiguous institutions. Trusts are one aspect of this venerable inheritance: the trust is as old as the Common Law. Actually, a little older in some respects: the English trust finds its roots in the 12th century.
It all started when a few knights returned from their crusades to find that the "friends" to whom they had entrusted management of their feudal lands refused to return said lands. There was no mechanism at law to force the new untrustworthy owners to return the land so the law courts could do nothing.
Naturally, the irate knights went to the Lord Chancellor and "asked" for justice. One can imagine the scene: the silk-gowned Lord Chancellor looking down at the length of his shoe, then up at a selection of battle-worn armored thugs with gauntlets tapping hilts on chipped swords, over at the foppish, yawning new land-holder, then down again at the length of his shoe. Unsurprisingly, the knights who had nothing else to live for continually won in the Courts of the Chancellory and the concept of trustees and beneficiaries was born. I wager that trial by ordeal would have reached similar results so this must have been fate at work.
Tomorrow some interesting case law, I promise.